State of North Carolina v. Lemans L. Ivory

906 F.2d 999, 1990 U.S. App. LEXIS 11032, 1990 WL 89745

• Court: Court of Appeals for the Fourth Circuit
• Decided: July 2, 1990
• Docket: 89-5123
• Status: Published

Opinions

WILKINSON, Circuit Judge:

The question before us is whether a United States Marine may remove to federal court, pursuant to 28 U.S.C. § 1442(a)(1), his state criminal prosecution arising out of an accident which occurred while he was driving in a military convoy. .We agree with North Carolina’s contention that Ivory’s ground for removal was insufficient under Mesa v. California, 489 U.S. 121, 109 S.Ct. 959, 103 L.Ed.2d 99 (1989), because he did not aver a federal defense. We reverse the judgment of the district court and direct it to remand this case for further proceedings in the North Carolina courts.

I.

The state charges against Lemans Ivory, a United States Marine, resulted from an accident on August 16, 1988, while Ivory was driving a truck in a military convoy. The convoy was returning from Cherry Point to Camp LeJeune, North Carolina, traveling west on four-lane Highway 24. It proceeded to make a left hand turn across the eastbound lanes of the highway onto Highway 172. The first twenty trucks of the convoy made the turn without incident. Ivory approached the intersection traveling at about five to seven miles per hour, and accelerated through it without stopping. His truck collided with a car in the inside, eastbound lane of Highway 24 causing its driver, Jason Pickett, to be fatally injured.

On August 17, 1988, Ivory was charged with unintentional death by motor vehicle and failure to yield the right of way in violation of N.C.Gen.Stat. §§ 20-141.4 and 20-155, respectively. The second charge was subsequently dismissed. Ivory then petitioned the Eastern District of North Carolina for removal pursuant to 28 U.S.C. § 1442(a)(1). The state did not file a motion to remand, and the removal petition was granted on October 11, 1988.¹

Ivory then moved to dismiss the charge on the ground that the state prosecution violated the Supremacy Clause. Following two evidentiary hearings, the United States magistrate concluded that Ivory was entitled to immunity from state prosecution because he was an agent of the federal government acting under the laws of the United States and because he believed that his conduct was necessary and justifiable. See In re Neagle, 135 U.S. 1, 75, 10 S.Ct. 658, 672, 34 L.Ed. 55 (1890). The district court adopted the magistrate’s proposed findings of fact and recommended conclusions of law and granted defendant’s motion to dismiss.

North Carolina appeals.

II.

Ivory contends that the removal of his case to federal court was proper because, at the time of the accident which gave rise to the state charges, he was driving in a military convoy and believed that it was safe to enter the intersection with his convoy truck. We hold, however, that these allegations do not constitute a federal defense as required to support removal to federal court under Mesa v. California, 489 U.S. 121, 109 S.Ct. 959, 103 L.Ed.2d 99 (1989).²

In Mesa, United States Postal Service employees attempted to remove to federal court their state criminal prosecutions for traffic violations which arose in the course of their mail delivery duties. One employee had been charged with misdemeanor-manslaughter after she struck and killed a bicyclist with her mail truck. The second individual received a ticket for speeding and failing to yield the right-of-way after his mail truck collided with a police car. See California v. Mesa, 813 F.2d 960, 961 n. 2 (9th Cir.1987). The postal workers argued that they were entitled to remove under the federal officer removal statute, 28 U.S.C. § 1442(a)(1), because “the state charges arose from ... accident[s] ... which occurred while defendants] [were] on duty and acting in the course and scope of [their] employment with the Postal Service.” Mesa, 109 S.Ct. at 962.³ The Supreme Court held, however, that a “scope of employment” defense was insufficient by itself to support removal. It stressed that § 1442(a) is a pure jurisdictional statute which requires averment of a colorable federal defense in order to satisfy the requirement of Article III that a case arise under the Constitution or laws of the United States. Id. at 964, 968. Since defendants “ha[d] not and could not present an official immunity defense to the state criminal prosecutions brought against them,” the Court held that they were not permitted to remove their cases to federal court. Id. at 967.

Like the Postal Service workers in Mesa, Ivory has not alleged a defense of federal immunity.⁴ Ivory was subject to local traffic laws concerning rights of way, speed limits and the like, Johnson v. Maryland, 254 U.S. 51, 56, 41 S.Ct. 16, 65 L.Ed. 126 (1920); Lilly v. West Virginia, 29 F.2d 61, 64 (4th Cir.1928), and he has not alleged anything in the conduct of his federal responsibilities which justified his violation of these laws. See Maryland v. Soper, 270 U.S. 9, 34, 46 S.Ct. 185, 191, 70 L.Ed. 449 (1926); People v. Zidek, 691 F.Supp. 1177, 1178 (N.D.Ill.1988). To the contrary, as part of his standing orders as a military driver, Ivory was instructed that all motor transports were to comply with local traffic laws. Similarly, at his pre-convoy briefing, Ivory received orders to obey all traffic rules and to maintain the convoy only if oncoming vehicles yielded the right of way. Otherwise, he was to stop and let the other vehicles pass through safely.

. Many of the facts in dispute here do not speak to the federal character of the incident and are simply matters for the state courts to resolve. North Carolina contends, for example, that Ivory failed to yield the right of way, as he was required by state traffic laws and his military orders to do. The state points out that there were no functioning traffic lights, signalmen or other mechanisms at the accident intersection that allowed the convoy to acquire the right of way. Thus, drivers of oncoming vehicles had no legal obligation to give up the right of way and every reason to believe that the military drivers would yield as the law required them to do. Ivory, on the other hand, asserts that because two cars in the eastbound lanes of Highway 24 had stopped, he assumed all other oncoming traffic would do the same. While this assertion may well serve as a defense to the state prosecution, it does not establish the basis of a claim of federal immunity. We conclude that Ivory’s prosecution under local traffic laws was based on conduct “not justified by his federal duty,” Soper, 270 U.S. at 33, 46 S.Ct. at 190, but, if anything, in conflict with it. Compare Montana v. Christopher, 345 F.Supp. 60 (D.Mont.1972) (officer immune from suit under state traffic laws where he had reported malfunctioning truck to superiors but was ordered to use it to complete emergency snow removal in connection with a flood).

Of course, an “officer need not win his case before he can have it removed,” Willingham v. Morgan, 395 U.S. 402, 407, 89 S.Ct. 1813, 1816, 23 L.Ed.2d 396 (1969), but under Mesa he must allege facts that would support a colorable immunity defense if those facts were true. Federal immunity has never extended so far as to “ ‘place [government officials] beyond the reach of the criminal law.’ ” Mesa, 109 S.Ct. at 967 (quoting Imbler v. Pachtman, 424 U.S. 409, 429, 96 S.Ct. 984, 994, 47 L.Ed.2d 128 (1976)). The “ ‘regulation of crime is pre-eminently a matter for the States,’ ” and there is a “ ‘strong judicial policy against federal interference with state criminal proceedings.’ ” Id., 109 S.Ct. at 969 (quoting Arizona v. Manypenny, 451 U.S. 232, 243, 101 S.Ct. 1657, 1665, 68 L.Ed.2d 58 (1981)). Every state has an interest in protecting its citizens from drivers who are reckless or intoxicated; that interest does not vanish whenever the driver happens to be a federal employee in a government car or a military truck. Where no colorable federal defense is averred, state prosecutors should not be forced to “choose between prosecuting traffic violations hundreds of miles from the municipality in which the violations occurred or abandoning those prosecutions.” Mesa, 109 S.Ct. at 969. Moreover, if every traffic violation involving a military driver could be removed to a federal forum, it would quickly transform these tribunals into local traffic courts. See Georgia v. Waller, 660 F.Supp. 952, 954 (M.D.Ga.1987); Virginia v. Harvey, 571 F.Supp. 464, 465 (E.D.Va.1983).

Section 1442, of course, operates under the Supremacy Clause to displace state interests in the prosecution of traffic offenses, but only to the extent that its constitutionally-derived requirements are met. In the unusual case, where some special exigency exists, the state interest in regulation of its highways must give way under § 1442 to the federal interests implicit in any defense of immunity. For example, state law will not apply to federal officials “engaged in the performance of a public duty where speed and the right of way are a necessity.” Lilly, 29 F.2d at 64. However, Ivory has alleged nothing which justified his making the left hand turn without yielding the right of way to oncoming vehicles. The convoy was returning from a routine transport of marines; nothing resembling an emergency existed. Ivory had no reason to accelerate through the intersection. His orders were to maintain a minimum distance of at least one-and-one-half truck lengths between vehicles. He was under no order prohibiting vehicles in the convoy to separate more than a maximum distance apart. There may, of course, be circumstances where military drivers may properly invoke the removal provisions of § 1442(a)(1). We cannot hold, however, that the mere presence of a driver in a military convoy automatically gives rise to a colorable claim of immunity from local traffic laws. Compare id. at 64 (federal officer immune from prosecution for speeding while pursuing a fleeing felon); City of Norfolk v. McFarland, 143 F.Supp. 587 (E.D.Va.1956) (officer immune from prosecution for speeding while enroute to execute raid of a suspected illegal still).

III.

A word is due on the dissenting opinion, which we believe fails to follow the Supreme Court’s decision in Mesa and undermines the interests of all states in the enforcement of their traffic laws.

The dissent contends that Ivory has presented a colorable claim of immunity because he “was under orders from his military superiors to proceed into intersections if he saw that it was safe to do so” and “[h]e did think it was safe to enter into this intersection.” This reasoning is, of course, tautological. In point of fact, it is only safe and reasonable to enter an intersection when one has the right of way. The kind of routine order relied upon by Ivory, which outlined the same duty already incumbent upon him under ordinary traffic laws, cannot without more be the basis of federal immunity. At bottom, the dissent is simply relapsing into the same “scope of employment” test for removal of state prosecutions which was explicitly rejected by the Supreme Court in Mesa, 109 S.Ct. at 962, 967-68.

To be in federal court under § 1442 one must first allege a colorable federal defense, and the only conceivable federal defense here is immunity from the criminal enforcement of state and local traffic laws. The dissent would have the very act of driving in a military convoy establish a federal immunity defense, despite the absence of any military emergency, the lack of any order to maintain a discrete distance between convoy trucks, and the absence of any indication to oncoming vehicles that they should stop and yield the right of way. To establish a federal immunity defense in this situation, resulting in dismissal of the criminal charges, is “carte blanche” for drivers in a convoy to proceed as they please, notwithstanding state laws to the contrary. The rules of the road depend for effect on universal observance. Highways are great equalizers, but the dissent would inaugurate under the rubric of immunity defenses a judicially conceived hierarchy of motorists. While this may be of comfort to those now cloaked with immunity, it is a chilling prospect for pedestrians and other drivers who must use the roads. Here the military driver’s actions resulted in the death of a motorist who was doing only what state traffic laws entitled him to do. Had there been any exigency stemming from the duties of military service or federal employment, this would, we repeat, have been a different case. There was none here, however, and we are reluctant to reduce in the form of a federal immunity defense the respect for stop signs, yield signs, and speed limits that every driver owes.

The judgment of the district court is reversed. This case is remanded with instructions to remand it in turn to the North Carolina courts.

REVERSED.

1 . Ivory contends that by failing to file a motion for remand within thirty days after filing of the notice of removal, the State has waived its right to raise this issue on appeal. See 28 U.S.C. § 1447(c). We disagree. The thirty-day limitation applies only to objections to defects in removal procedure. North Carolina's objection here is that the court lacks subject matter jurisdiction, an objection that may be raised by the parties at any time or by the court sua sponte. See Wright, Miller & Cooper, Federal Practice and Procedure § 3739 (1985 & Supp.1989).

2 . The dissent argues that the state is estopped from challenging the removal of this case on appeal by its failure to object below. However, we are loathe to find waiver when subject matter jurisdiction is at issue and when a recent Supreme Court decision has issued clarifying the jurisdictional boundaries of § 1442(a) removal. Moreover, as the dissent concedes, we may properly consider on appeal whether "jurisdiction existfed] at the time of judgment.” Grubbs v. General Elec. Credit Corp., 405 U.S. 699, 702, 92 S.Ct. 1344, 1347, 31 L.Ed.2d 612 (1972). We conclude that it did not. Mesa made clear that averment of a colorable federal defense is essential to Article III “arising under” jurisdiction in cases removed under § 1442(a)(1). Not only did Ivory fail to aver such a defense in his removal petition, he failed to present facts in the record taken as a whole that would support an immunity defense. Thus, remand is warranted because "[t]he posture of this case even at the time of judgment also barred federal jurisdiction." American Fire & Casualty Co. v. Finn, 341 U.S. 6, 17, 71 S.Ct. 534, 542, 95 L.Ed. 702 (1951). See Wright, Miller & Cooper, Federal Practice and Procedure § 3739. Any other result would “work a wrongful extension of federal jurisdiction and give district courts power the Congress has denied them.” American Fire & Casualty Co., 341 U.S. at 18, 71 S.Ct. at 542.

3 . The removal provision at issue, 28 U.S.C. § 1442(a)(1), states:

A civil action or criminal prosecution commenced in a State court against any of the following persons may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending:

(1) Any officer of the United States or any agency thereof, or person acting under him, for any act under color of such office or on account of any right title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue.

4 .Both Ivory and the dissenting opinion apparently believe that Mesa can be satisfied by some talismanic invocation. Ivory’s petition for removal simply tracked the “color of office” language of the federal officer removal statute. By itself, this is insufficient to satisfy Mesa's requirement that a federal defense be averred in the removal petition. However, since Mesa was decided five months after the petition was filed, we also consider whether, on this record, Ivory could have alleged a colorable federal defense that would have warranted removal.

The dissent contends Ivory could have done so by amending the removal petition to allege that he was “engaged in the performance of his lawful duties and was acting in a manner which he determined was necessary and proper in the discharge of his duties.” However, merely reciting the magic words "necessary and proper" will not satisfy Mesa’s jurisdictional requirement if the underlying facts averred, or indeed existing on the whole record before the court, do not make out a colorable federal defense. The defect here is not curable by amendment because jurisdiction was not only insufficiently pleaded, it is impossible of establishment. See Newman-Green, Inc. v. Alfonzo-Larrain, — U.S. -, 109 S.Ct. 2218, 2222, 104 L.Ed.2d 893 (1989).