The opinion of the court was delivered by: Hon. Anthony J. Battaglia U.S. District Judge
ORDER GRANTING MOTION TO DISMISS
[Doc. No. 8]
Presently before the court is Defendant Cole Dotson's motion to dismiss the charges based on supremacy clause immunity. The motion is opposed by Deputy District Attorney Wayne Robinson on behalf of the People of the State of California. The Defendant filed a Reply.
A hearing was held on May 24, 2012 at 9 a.m. in Courtroom 12 before Judge Battaglia. Deputy District Attorney Wayne Robinson appeared on behalf of the People of the State of California, and Jeremy Warren, Michael Stone and appeared on behalf of the defendant. Based upon the parties moving papers, the arguments of counsel and for the reasons expressed on the record and set forth below, the Defendant's motion to Dismiss, [Doc. No. 8], is hereby GRANTED.
The Defendant, Cole Dotson, is a federal law enforcement officer assigned to the Office of Investigations, Proactive Narcotics Group, in El Centro, California. On December 29, 2009, the Defendant participated in the undercover surveillance of a suspected methamphetamine trafficker who was crossing the Mexico border into Calexico, California. After the suspect crossed the border into the United States and was identified, the Defendant got into his unmarked law enforcement vehicle and began following the suspect via a parallel route. During this surveillance, there were communication difficulties for the Defendant and his team; radio coverage was intermittent and agents were forced to rely on their cell phones to attempt to maintain communication. The Defendant continued to follow the suspect from a parallel route and when he determined that the suspect was headed north, he changed course in an effort to find a highway that would allow him to continue to follow the suspect. He turned north onto Bowker Road, a long, straight north-south highway. While changing routes the Defendant became separated from his team and the suspect he was following.
It was dark and the Defendant, in an apparent effort to catch up with the suspect and the rest of his team, was traveling rapidly down the highway. At certain times the Defendant was traveling over 100 miles an hour. When Defendant approached the intersection of Bowker and East Heber Road his speed was approximately 80 miles per hour. He failed to stop at the stop sign, and upon entering the intersection he collided with the side of a van. The Defendant was going 78 miles per hour at the time of collision and had not turned on his police siren before entering the intersection. Both vehicles careened into a drainage ditch next to the road. The van flipped over killing three of the occupants and injuring 2 others. None of these facts are disputed in this motion.*fn1
The grand jury declined to return an indictment on charges of murder and manslaughter. The Imperial County District Attorney's office issued a complaint charging three counts of felony vehicular manslaughter with gross negligence and without malice. After a preliminary hearing, the Defendant filed a notice of removal to this court pursuant to 28 U.S.C. § 1442(a). As grounds for removal, the Defendant asserted the federal defense of federal immunity. The court granted removal pursuant to § 1442(a).
Under Federal Rule of Criminal Procedure 12(b)(2), a party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial of the general issue. Where the court determines there are not any material disputes of fact, it is free to rule without taking evidence or holding a testimonial hearing. Idaho v. Horiuchi, 253 F.3d 359, 374 (9th Cir.) (en banc), vacated as moot, 266 F.3d 979 (9th Cir. 2001). Where there are disputed issues of fact, the court must hold a hearing and make a determination pretrial. Id., citing West Virginia v. Laing, 133 F. 887, 891 (4th Cir. 1904) ("Congress certainly intended, in cases of this character, that the judges of the United States should hear the evidence, and without a jury proceed in a summary way to pass upon the federal question involved"). "Federal judges, versed in the subtleties of federal immunity law, are well equipped to make factual findings and legal conclusions." Idaho v. Horiuchi, 253 F.3d 359, 376 (9th Cir.) (en banc), vacated as moot, 266 F.3d 979 (9th Cir. 2001).
The Defendant filed a motion to dismiss the instant case based upon Supremacy Clause immunity. Arguing such immunity protects federal officers from state court prosecution when the prosecution is based on activities performed in the scope and course of duty where the officers conduct was "necessary and proper." In re Neagle, 135 U.S. 1 (1890). When a federal officer seeks to use the Supremacy Clause immunity he must first establish a threshold defense of immunity. Commonwealth of Kentucky v. Long, 837 F.2d 727, 857 (6th Cir. 1988). Then the burden shifts to the prosecution to produce evidence "sufficient at least to raise a genuine factual issue whether the federal officer was . . . doing no more than what was necessary and proper for him to do in the performance of his duties." Id. "The district court ...