We’re going to start our coverage of Iron Man 3 with some questions we received almost two weeks ago from Heiki, who saw the movie at a local premiere in Europe. We had to wait to see it this weekend, but it was well worth it. If you haven’t seen it yet, you should. It’s a great movie. There are some fairly serious spoilers below, though.
I. When Push Comes to Shove: State and Federal Law Enforcement
First, Iron Man 3 has a scene of one of Killian’s subordinates roughing up Stark. When a local sheriff intervenes, she literally produces a DHS badge and claims to make an arrest. The sheriff demands more information and she roughs him up too. However, assuming she had not, to what extent could the sheriff have legally intervened? On the one hand it has been long recognised that state authorities may not interfere with federal officers carrying out their duties, but on the other hand an unlawful arrest is a crime and even the detainee has the right to know why s/he is being detained. So, assuming that the parties wanted to resolve their differences according to law and not by violence, what exactly would the sheriff be entitled to demand from someone the sheriff reasonably believed to be a federal officer? Furthermore, to what extent would the “federal officer” have to explain herself?
In case it isn’t clear, the woman in Heiki’s question is Killian’s subordinate, a woman with the last name of Brandt. Brandt roughs up Stark, the sheriff starts to intervene, Brandt produces a DHS badge, then as I recall the sheriff requests that Brandt produce a warrant (something about calling Nashville, I think). At that point Brandt attacks the sheriff and Stark (briefly) escapes in the resulting confusion.
Heiki is correct that if Brandt really were a federal agent conducting an arrest (lawful or otherwise) then a state law enforcement officer would not be able to interfere. Faulkner v. State, 226 S.W.3d 358, 363 (Tenn. 2007). But does it suffice to simply wave a badge (that the sheriff probably isn’t familiar with) and claim federal authority? To what extent could the sheriff demand proof that Brandt was a) really a federal agent and b) acting with in the scope of her authority?
The Tennessee resisting arrest statute reads as follows:
(a) It is an offense for a person to intentionally prevent or obstruct anyone known to the person to be a law enforcement officer … from effecting a stop, frisk, halt, arrest or search of any person, including the defendant, by using force against the law enforcement officer or another.
(b) Except as provided in § 39-11-611, it is no defense to prosecution under this section that the stop, frisk, halt, arrest or search was unlawful.
T. C. A. § 39-16-602. The exception in § 39-11-611 is an exception for self-defense in cases where the arresting officer uses unnecessary force. Brandt was rough with Stark, but Stark is a strong guy known for carrying a lot of serious firepower, so I’m not sure the sheriff or Stark could claim that exception (NB: the force must actually be unnecessary; it’s not enough that the sheriff or Stark subjectively believed it was unnecessary).
Going back to the text of the statute: Tennessee requires (as do many but not all states) that the arresting officer be “known to the person to be a law enforcement officer.” Unfortunately, I can’t find any Tennessee cases focusing on the degree of knowledge or certainty required or whether actual knowledge is required. But looking at a Florida Supreme Court case that considered the issue somewhat more squarely in the context of a similar statute, I think it could be argued that actual knowledge is required and that the sheriff might not have had it. See Polite v. State, 973 So.2d 1107 (Fla. 2007) (holding that knowledge is an essential element of resisting arrest with violence in Florida).
In Polite, an undercover officer attempted to arrest a man for tampering with a parking meter. The officer produced a badge, identified himself as an officer, and pulled out handcuffs. There was a brief altercation, the man fled, backup was called for, and when the man was found by a uniformed officer he submitted without a struggle, saying that he wasn’t sure if the undercover officer was a policeman.
The Florida Supreme Court case was about whether knowledge of the officer’s status was required in order to convict someone of resisting arrest, not whether the defendant had that knowledge, but the court stated that
In this case, there are certainly facts to suggest that Officer Muñoz took steps to identify himself as a police officer before attempting to arrest the defendant. However, there are also facts to suggest that a jury, if properly instructed and not affirmatively misled by the prosecution, could have determined that the State failed to meet its burden on the element of whether Polite knew that the person who attempted to detain him was a police officer.
In Iron Man 3, Brandt was wearing plain clothes, used seemingly excessive force, only briefly flashed a badge (which the local sheriff probably didn’t recognize anyway), and was uncooperative. Following the example in Polite, I’d say it could go either way (though a local jury would likely sympathize with the sheriff), and Brandt should probably have produced a little more evidence of her alleged federal status.
The real clincher, though, is not whether the state resisting arrest statute would apply. If Brandt were a federal officer (or if the sheriff were even a little worried she might be), then the sheriff’s real concern would be 18 USC § 111, “Assaulting, resisting, or impeding certain officers or employees”. The problem with § 111—from the sheriff’s point of view—is that it does not require knowledge that the victim is in fact a federal officer. U.S. v. Feola, 420 U.S. 671 (1975). If Brandt really were a DHS agent, and the sheriff intervened, he might be clear of state charges, but he could still be charged with a federal crime. Given that high level of protection, it’s no wonder the sheriff was fairly deferential under the circumstances.
II. Vice Presidential Arrest, Impeachment, and Removal
Secondly, in the end a scene is shown where the Vice President is taken into custody and led away. While the rule of law applies to the Vice President just like everyone else, are there any special procedural rules for taking him or her into custody and later indictment?
The short answer is no. The prevailing view today is that neither the Vice President nor the President has any criminal immunity while in office, and either could be indicted prior to being impeached and removed from office. Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law — Substance & Procedure §§ 8.10(c)(i)-(iii); Eric M. Freedman, The Law as King and the King as Law: Is a President Immune From Criminal Prosecution Before Impeachment?, 20 Hastings Const. L.Q. 7 (1992). There have even been two historical examples: Vice Presidents Aaron Burr and Spiro Agnew were indicted. Burr avoided arrest (though not by claiming immunity) and Agnew engaged in a plea bargain.
Presidents Nixon and Clinton tried to argue that a sitting President (specifically the President, not the Vice President) should have immunity, but their arguments were never heard in court. In Nixon’s case, the Watergate Grand Jury didn’t indict, but the D.C. Circuit did indicate in dictum that it rejected Nixon’s argument. “[The people] do not forfeit through elections the right to have the law construed against and applied to every citizen. Nor does the Impeachment Clause imply immunity from routine court process.” Nixon v. Sirica, 487 F.2d 700, 711 (D.C. Cir. 1973) (per curiam) (en banc).
President Clinton was also never indicted, but he was subject to civil contempt of court. He could theoretically have been charged with crimes but made various agreements with prosecutors involving, among other things, resigning from the Supreme Court bar and the state bar of Arkansas. In Clinton v. Jones the Supreme Court upheld the civil contempt order and indicated in broad language that a sitting president could also be subject to criminal charges. ”[T]he President, like other officials, is subject to the same laws that apply to all citizens.” Clinton v. Jones, 520 U.S. 681 (1997).
The (in my opinion rather weak) argument that the President has any immunity does not rest on explicit language in the Constitution but rather on the implication that imprisoning the President would usurp Congress’s exclusive power to remove the President from office. Alternatively, the claim is made that it makes no sense for the executive to prosecute himself or herself. Both of these issues have been resolved, however.
First, the Twenty-Fifth Amendment provides for the transfer of power to the Vice President if the President “is unable to discharge the powers and duties of his office,” which would presumably apply if the President were imprisoned. The Twenty-Fifth Amendment also provides for nomination of a replacement Vice President if that office is ever vacant.
Second, the Independent Counsel Act (signed into law by President Clinton) forbids the President from firing the Independent Counsel except for cause. Thus, by giving up control over the IC, the executive is no longer prosecuting himself or herself voluntarily. And of course executive power is not vested in the Vice President, so prosecuting the Vice President doesn’t raise this issue in the first place, Independent Counsel or otherwise.
Even Robert Bork—and a stauncher advocate of executive privilege you’ll rarely find—argued in a memo authored while he was Nixon’s Solicitor General that only the President was immune from indictment; the Vice President was fair game. In re Proceedings of the Grand Jury Impaneled December 5, 1972, Application of Spiro T. Agnew, Vice President of the United States, Case Number Civil 73-965, Memorandum for the United States Concerning the Vice President’s Claim of Constitutional Immunity, Oct. 5, 1973.
The bottom line is that the way the Vice President’s arrest was handled in the movie was probably about right, particularly since the President was presumably entirely supportive of the arrest and prosecution. Following the VP’s removal from office or resignation, the President would then nominate a replacement, who would take the job after confirmation by a majority of both Houses of Congress, per the Twenty-Fifth Amendment.
These two issues were both handled pretty well by the movie. A local sheriff might well demand an explanation from a federal agent, but direct intervention is a bad idea unless the sheriff is pretty certain the “agent” is actually an impostor. The Vice Presidential arrest was also probably how that would play out, even though strictly speaking there’s no exact precedent for it because neither Burr nor Agnew were arrested. It would have been more unbelievable to have him impeached first, for example, or worse, showing him resigning rather than being arrested.
This isn’t all we have for Iron Man 3. Stay tuned!