Petition of Lloyd Clifton for a Writ of Habeas Corpus v. Gene Cox, Sheriff of Humboldt County, California

The United States District Court for the Northern District of California, the Honorable Samuel Conti presiding, granted petitioner Lloyd Clifton a writ of habeas corpus discharging him from the constructive custody of the respondent Gene Cox, Sheriff of Humboldt County, California, and the State of California, It permanently stayed all state criminal proceedings arising from an indictment charging Clifton with second degree murder and involuntary manslaughter for the shooting of Dirk Dickenson on April 4, 1972, while Clifton was serving as a special agent for the Bureau of Narcotics and Dangerous Drugs (BNDD) in the United States Department of Justice. 1 Respondent Cox appeals. 2 We affirm the grant of the writ.

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The district court held an evidentiary hearing, lasting three days, and found the following facts.

Petitioner was a member of a task force from various federal and state agencies which secured a federal search warrant authorizing a search of a ranch near Garberville, California, the alleged location of an illegal drug manufacturing operation. The task force also obtained a federal arrest warrant for Dirk Dickenson, one of the record owners of the…

concurring:

I concur because I believe the BNDD regulations can be reasonably read as authorizing petitioner’s conduct as found by the district court.

Although the regulations prohibit an agent from firing “at fleeing suspects,” they impliedly authorize firing at a person “to protect [the agent’s] own life or that of some other person.” It was not unreasonable for the agent to believe the regulations, read together, authorized him to shoot a fleeing suspect who posed a danger to the life of the agent or other person. The two provisions are to be read together, not as independent, absolute commands. An agent would not be required to remain passive if a suspect fired as he fled. The present case is only a slight step removed. The district court found that petitioner reasonably believed the suspect had shot Agent Filben and was armed and dangerous, and that if the suspect reached the cover of the woods the lives of the pursuing officers would be endangered. The court further found that petitioner acted honestly and reasonably in shooting the suspect. The findings are not clearly erroneous. In light of the findings, I conclude the agent acted within the scope of his authority. See…

dissenting:

I respectfully dissent.

The question under Ex parte Neagle, 135 U.S. 1, 75 , 10 S.Ct. 658, 672 , 34 L.Ed. 55 (1890), is whether Clifton was “held in the state court to answer for an act which he was authorized to do by the law of the United States, which it was his duty to do as [agent] of the United States, and if, in doing that act, he did no more than what was necessary and proper for him to do * * Neagle holds, under the supremacy clause of the Constitution, that if Clifton was so acting pursuant to his authority and duty under federal law, then the state cannot hold such conduct to be criminal. As a matter of law, a crime has not been committed.

Sixteen years after Neagle, in United States ex rel. Drury v. Lewis, 200 U.S. 1 , 26 S.Ct. 229 , 50 L.Ed. 343 (1906), the question was before the Court again. There the Court pointed out that federal habeas corpus jurisdiction to free a state prisoner pri- or to trial should not be freely exercised. It stated:

200 U.S. at 7 , 26 S.Ct. at 231 .

The nature of the question before the federal habeas corpus judge was discussed:

Id. at 8 , 26 S.Ct. at 232 . 1

This distinction should, I feel, be kept in mind. It is not for…

549 F.2d 722 Petition of Lloyd CLIFTON for a Writ of Habeas Corpus, Petitioner-Appellee, v. Gene COX, Sheriff of Humboldt County, California, Respondent-Appellant. No. 75-1585. United States Court of Appeals, Ninth Circuit. March 4, 1977. William F. Ferroggiaro, Jr., argued, John E. Buffington, Dist. Atty., Eureka, Cal., for respondent-appellant. James L. Browning, Jr., U. S. Atty., argued, San Francisco, Cal., James R. McKittrick, argued, Matthews, Traverse & McKittrick, Eureka, Cal., for petitioner-appellee. Evelle J. Younger, Atty. Gen. of California, San Francisco, Cal., for amicus curiae. Appeal from the United States District Court For the Northern District of California. Before BROWNING, MERRILL and LAY, * Circuit Judges. OPINION LAY, Circuit Judge: 1 The United States District Court for the Northern District of California, the Honorable Samuel Conti presiding, granted petitioner Lloyd Clifton a writ of habeas corpus discharging him from the constructive custody of the respondent Gene Cox, Sheriff of Humboldt County, California, and the State of California. It permanently stayed all state criminal proceedings arising from an indictment charging Clifton with second…