[Congressional Record Volume 158, Number 52 (Thursday, March 29, 2012)]
[Senate]
[Pages S2253-S2254]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. GRASSLEY (for himself, Mr. Coons, Mr. Coburn, and Mr. 
        Sessions):
  S. 2276. A bill to permit Federal officers to remove cases involving 
crimes of violence to Federal court; to the Committee on the Judiciary.
  Mr. GRASSLEY. Mr. President, I rise today in support of a bill that I 
am introducing on behalf of a bipartisan group of Senators, the Officer 
Safety Act of 2012, S. 2276. This bill allows a Federal law enforcement 
agent, who stops a violent crime while off-duty and is indicted in a 
State court for those actions, to petition for the State criminal 
prosecution against him to be removed to Federal court.
  The bill effectuates this change by amending the Federal removal 
statute, found in 28 United States Code, Section 1442, to clarify when 
a Federal law enforcement officer is acting under the color of his 
office.
  As a 2003 Judiciary Committee report stated, ``Law enforcement 
officers are never `off-duty.' '' Many are required to carry an off-
duty weapon. When they fly on personal business, they are expected to 
carry their weapon and check-in with the airline as a Federal law 
enforcement agent so they can defend the pilots and passengers if 
something bad happens. In fact, Federal agents are specifically paid to 
be available 24 hours a day, 7 days a week. Agents can be disciplined 
if they are not available when called.
  They are not even allowed to engage in activities on their personal 
time that regular citizens take for granted, like coaching their kids' 
sports teams, if it might interfere with their ability to respond to a 
crisis.
  Federal law enforcement agents are extensively trained, at the 
expense of the taxpayer for the benefit of the taxpayer. They not only 
train in basic academies, but they are required to participate in 
additional and regular training and re-certifications many times each 
year. If training is missed or if standards are not up to par, the 
agent is disciplined or removed. Federal law enforcement agencies take 
training requirements very seriously. The United States is known for 
having the best trained Federal law enforcement officers in the world.
  So what if one of these exceptionally trained Federal law enforcement 
agents walks into the grocery store on a Saturday and witnesses a woman 
being repeatedly hit by her husband; do we want him to walk past the 
woman? No. The taxpayers spend money on his training so that he can 
protect victims, not walk away from them. In this situation, we all 
hope that he would use his training to protect the victim. But when he 
steps in to protect the victim from a crime of violence occurring in 
his presence, he risks state criminal prosecution and damage to his 
career. That might lead him to hesitate. This is contrary to good 
public policy. If we were the victim in this scenario, every one of us 
would want that Federal law enforcement officer to help us.
  If a Federal agent acts to protect an individual in his presence from 
a crime of violence, as taxpayer dollars have trained him to do, and 
then is indicted in State court for that act, he should have the right 
to defend himself within the Federal court system.
  So the Officer Safety Act amends the removal statute, found in Title 
28, United States Code, Section 1442, to clarify when a Federal law 
enforcement officer is acting under the color of his office. This bill 
does not provide immunity for law enforcement agents, and it does not 
grant them additional authority. It doesn't even guarantee that the 
case will be moved from State to Federal court: the State will be heard 
and its position will be weighed by the judge before deciding if 
removal is appropriate. It does allow a Federal law enforcement 
officer/agent, who is indicted in a State court for actions related to 
his protection of a victim of a violent crime that is committed in the 
officer's presence, to petition for that criminal case to be removed to 
Federal court, where the officer will be required to defend his 
actions.
  Current law provides that removal is proper so long as defendants 
demonstrate that they are officers of the United States that acted 
``under color of'' their office and have a ``colorable federal 
defense''.
  In general, a Federal agent acts ``under color of'' his office when 
he takes actions that are necessary and reasonable for the discharge of 
his Federal responsibilities. Accordingly, the prototypical example of 
a Federal officer acting under color of his office is a Federal law 
enforcement officer who kills someone while performing an act related 
to Federal law enforcement and, in the subsequent State homicide 
prosecution, claims he was acting in self-defense and/or is entitled to 
official immunity. The Supreme Court has upheld this 
prototypical example as appropriate for removal from State court to 
Federal court.

  The primary restraint on the current statute's scope is its 
limitation to defendants who acted under color of Federal office or, in 
other words, while performing official duties. Defendants must show in 
their petition for removal that there is a causal nexus between the 
actions challenged and their Federal duties.
  The history of the removal statute explains why this is important. 
The statute dates back to 1815. It was passed in response to the New 
England States' opposition to the trade embargo with England during the 
War of 1812. The law provided for the removal to Federal court of any 
suit or prosecution commenced in State court against a Federal customs 
officer or other persons enforcing Federal customs laws.

[[Page S2254]]

Thus, Federal agents did not need to fear performing their jobs because 
the local authorities opposed the embargo and wanted to stop them from 
enforcing it.
  A few decades later, the U.S. Government encountered a similar 
problem in South Carolina, which in 1833 declared certain Federal 
tariff laws unenforceable within its borders. Congress responded by 
authorizing the removal of any suit or prosecution commenced in a State 
court against an officer of the United States for the enforcement of 
the Federal revenue laws.
  During the Civil War and the Reconstruction era, Congress' 
disenchantment with State courts in the South led to new Federal 
officer removal laws. In the 1863 Habeas Corpus Act, Congress provided 
for the removal of suits or prosecutions against persons acting under 
Federal authority for actions, or failures to act, during the Civil 
War. In addition, Congress passed a removal statute similar to those of 
1815 and 1833, authorizing the removal of suits or prosecutions 
commenced in State court against Federal officers for actions, or 
omissions, related to the collection of Federal revenue. However, it 
was not until the enactment of the Judicial Code of 1948 that Congress 
extended the statute to cover all Federal officers.
  The courts view the history behind section 1442 and its statutory 
predecessors as justification for construing the statute broadly to 
assure the supremacy of U.S. law and protect Federal operations against 
interference from State judicial proceedings.
  This bill does not infringe upon States' rights, as they retain the 
same due process rights to be heard on the question of removal that 
have existed since the early 1800s. In fact, this Congress passed a 
bill by unanimous consent that amended this statute, without a word 
about States' rights.
  Today, Federal law enforcement officers, whether or not in uniform, 
require protections when they take actions to assist citizens. Civil 
liability protections are provided to officers under The Good Samaritan 
Act, codified at Title 28, United States Code, Section 2671. This bill, 
the Officer Safety Act, while modeled on the Good Samaritan Act, is 
narrower, more restrictive, and provides no liability protection. 
Rather, this bill clarifies the ``color of law'' prong required in the 
removal process, as courts have invited Congress to clarify.
  The bill makes no change to the current standards governing when 
removal is permissible, and therefore leaves alone existing standards 
and case law. But it provides that in three situations, the law 
enforcement officer who is a defendant in a State criminal prosecution 
will be deemed to have acted under color of his or her office: when the 
officer protects a victim from a violent crime committed in the 
presence of the officer; when the officer provides immediate assistance 
to an individual who suffered or is about to suffer imminent bodily 
harm; and when the officer prevents the escape of an individual the 
officer reasonably believes committed or was about to commit, in the 
presence of the officer, a crime of violence that resulted in or was 
likely to result in serious bodily injury. I believe that in these 
situations, the Federal courts should always determine that the law 
enforcement officer acted under the color of his or her office for 
purposes of determining whether to grant the officer's removal 
petition. But the courts remain free to determine under current law 
that there are other circumstances in which an officer seeking removal 
satisfies the color of office standard.
  So the bill is a modest change that nevertheless provides an 
important layer of safety for the people who risk their lives day-in 
and day-out to protect us. It will help make our communities safer and 
protect those who are sworn to guard and serve the American public.
  This principle and this bill are supported by the Federal Law 
Enforcement Officers Association, the Federal Bureau of Investigation 
Agents Association, and the National Border Patrol Council.
  I want to thank Senator Coons, a member of the Committee on the 
Judiciary, who co-chairs the Senate Law Enforcement Caucus, and is a 
co-sponsor on this bill. He understands the need to support law 
enforcement officers who risk their lives every day so that we can 
sleep safely at night.
  Further, I want to thank Senators Coburn and Sessions, also members 
of the Judiciary Committee and co-sponsors. They, too, understand this 
allows us to support Federal agents without spending a dollar.
  ``Law enforcement officers are never `off-duty.' '' To expect them to 
standby while a victim suffers violent acts in his presence is contrary 
to the oath they take to protect and renders their tax-funded training 
wasted as a citizen becomes a victim. Please join me in protecting 
those who protect us.
                                 ______