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Charlotte Amalie
Tuesday, August 16, 2022
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The Clark Case and the Constitution

Columbia Law School professor Trevor W. Morrisson.The murder trial of William Clark is already under way, but before it goes any further a critical issue must be reexamined—whether federal law enforcement officers are subject to criminal prosecution for taking actions within the scope of their duties.
Clark, an agent of the Federal Bureau of Alcohol, Tobacco and Firearms, faces a second-degree murder charge for intervening in a heated domestic argument and ultimately shooting and killing one of the disputants, Marcus Sukow. The facts of the case are contested, but part of Agent Clark’s claim is that he was acting pursuant to his federal authority as an ATF agent, and therefore that he is immune from punishment under the territory’s criminal laws. Fully evaluating that claim would require determining whether Agent Clark truly was acting within what he reasonably understood to be his federal authority at the time of the shooting, or whether he went so far beyond it to be deemed no different than a private citizen.
But the judge initially assigned to the case, Judge Brenda Hollar, refused even to consider this argument. Instead, she ruled earlier this year that Agent Clark’s status as a federal law enforcement officer is effectively irrelevant to the case. She reached that holding after concluding that a core provision of the U.S. Constitution, the Supremacy Clause, does not apply in the territory. That was an error.
Judge Hollar has since recused herself from the case and has been replaced by Judge Edgar Ross. Although trial has now begun, there may still be time for Judge Ross to correct Judge Hollar’s mistake.
The Supremacy Clause provides that federal law—including the U.S. Constitution, federal statutes, and treaties—“shall be the supreme Law of the Land.” The essence of Agent Clark’s argument is that: (1) the federal laws granting him authority as an ATF agent permit the use of deadly force in certain circumstances; (2) those laws are part of “the supreme Law of the Land”; and (3) the Supremacy Clause prohibits enforcing the territory’s criminal laws against him in a way that conflicts with those federal laws. This argument invokes a longstanding, well-recognized doctrine called “Supremacy Clause immunity.”
If this case had arisen in any of the 50 states of the Union, no one would question the applicability of Supremacy Clause immunity. Instead, the only issue would be whether Agent Clark’s actions were sufficiently related to his federal employment for him to be entitled to the doctrine’s protections. In this case, however, Judge Hollar rejected Supremacy Clause immunity on the sweeping ground that the Supremacy Clause does not apply in the territory.
That decision is understandable. As Judge Hollar pointed out, the basic terms of the territory’s status are set out in its revised Organic Act of 1954, itself a federal statute. The Act expressly incorporates certain provisions of the U.S. Constitution that would not otherwise apply in the U.S. Virgin Islands, but it does not list the Supremacy Clause. So there is a surface appeal to the idea that because the Supremacy Clause is not mentioned in the Organic Act, it must not apply in the territory.
But this reasoning ultimately and necessarily fails. Some provisions of the Constitution are so basic to the nature of the Union (which includes both states and territories) that they must apply in order for any federal law to apply. For example, parts of Article I of the Constitution establish rules for how federal laws are passed—majority votes in both houses of Congress, followed by the President’s signature. Those provisions are not mentioned in the territory’s Organic Act, but of course they apply. Indeed, the Organic Act itself would not be federal law if it had not been passed by both houses of Congress and signed by the President. The constitutional provisions establishing those requirements are inherent in the idea that any federal law could ever apply in the territory.
Something similar is true of the Supremacy Clause. Its application is implicit in the fact that the territory is part of the Union, within which applicable federal law is supreme. It does not tell us which federal laws apply in the U.S. Virgin Islands. But once we agree that certain federal laws do apply—like the federal gun laws that the ATF is empowered to enforce—the Supremacy Clause is necessarily triggered. The consequence of its being triggered is simple: Like all 50 states, the territory may not enforce its laws in a way that interferes with the supremacy of applicable federal law. To rule otherwise is effectively to delete the “U.S” from the U.S. Virgin Islands.
Judge Hollar did not deny the applicability in the territory of the federal laws that the ATF enforces. But if those laws apply, ATF agents must be able to invoke Supremacy Clause immunity for actions taken within the scope of their federal employment. Recognizing this point would not end the Clark case, but it would focus the analysis where it belongs.
Trevor Morrison is a Professor of Law at Columbia Law School in New York, where he teaches and writes in the areas of constitutional law, federal courts, and national security law. In 2009, he served in the White House as an associate counsel to the President.

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Columbia Law School professor Trevor W. Morrisson.The murder trial of William Clark is already under way, but before it goes any further a critical issue must be reexamined—whether federal law enforcement officers are subject to criminal prosecution for taking actions within the scope of their duties.
Clark, an agent of the Federal Bureau of Alcohol, Tobacco and Firearms, faces a second-degree murder charge for intervening in a heated domestic argument and ultimately shooting and killing one of the disputants, Marcus Sukow. The facts of the case are contested, but part of Agent Clark’s claim is that he was acting pursuant to his federal authority as an ATF agent, and therefore that he is immune from punishment under the territory’s criminal laws. Fully evaluating that claim would require determining whether Agent Clark truly was acting within what he reasonably understood to be his federal authority at the time of the shooting, or whether he went so far beyond it to be deemed no different than a private citizen.
But the judge initially assigned to the case, Judge Brenda Hollar, refused even to consider this argument. Instead, she ruled earlier this year that Agent Clark’s status as a federal law enforcement officer is effectively irrelevant to the case. She reached that holding after concluding that a core provision of the U.S. Constitution, the Supremacy Clause, does not apply in the territory. That was an error.
Judge Hollar has since recused herself from the case and has been replaced by Judge Edgar Ross. Although trial has now begun, there may still be time for Judge Ross to correct Judge Hollar’s mistake.
The Supremacy Clause provides that federal law—including the U.S. Constitution, federal statutes, and treaties—“shall be the supreme Law of the Land.” The essence of Agent Clark’s argument is that: (1) the federal laws granting him authority as an ATF agent permit the use of deadly force in certain circumstances; (2) those laws are part of “the supreme Law of the Land”; and (3) the Supremacy Clause prohibits enforcing the territory’s criminal laws against him in a way that conflicts with those federal laws. This argument invokes a longstanding, well-recognized doctrine called “Supremacy Clause immunity.”
If this case had arisen in any of the 50 states of the Union, no one would question the applicability of Supremacy Clause immunity. Instead, the only issue would be whether Agent Clark’s actions were sufficiently related to his federal employment for him to be entitled to the doctrine’s protections. In this case, however, Judge Hollar rejected Supremacy Clause immunity on the sweeping ground that the Supremacy Clause does not apply in the territory.
That decision is understandable. As Judge Hollar pointed out, the basic terms of the territory’s status are set out in its revised Organic Act of 1954, itself a federal statute. The Act expressly incorporates certain provisions of the U.S. Constitution that would not otherwise apply in the U.S. Virgin Islands, but it does not list the Supremacy Clause. So there is a surface appeal to the idea that because the Supremacy Clause is not mentioned in the Organic Act, it must not apply in the territory.
But this reasoning ultimately and necessarily fails. Some provisions of the Constitution are so basic to the nature of the Union (which includes both states and territories) that they must apply in order for any federal law to apply. For example, parts of Article I of the Constitution establish rules for how federal laws are passed—majority votes in both houses of Congress, followed by the President’s signature. Those provisions are not mentioned in the territory’s Organic Act, but of course they apply. Indeed, the Organic Act itself would not be federal law if it had not been passed by both houses of Congress and signed by the President. The constitutional provisions establishing those requirements are inherent in the idea that any federal law could ever apply in the territory.
Something similar is true of the Supremacy Clause. Its application is implicit in the fact that the territory is part of the Union, within which applicable federal law is supreme. It does not tell us which federal laws apply in the U.S. Virgin Islands. But once we agree that certain federal laws do apply—like the federal gun laws that the ATF is empowered to enforce—the Supremacy Clause is necessarily triggered. The consequence of its being triggered is simple: Like all 50 states, the territory may not enforce its laws in a way that interferes with the supremacy of applicable federal law. To rule otherwise is effectively to delete the “U.S” from the U.S. Virgin Islands.
Judge Hollar did not deny the applicability in the territory of the federal laws that the ATF enforces. But if those laws apply, ATF agents must be able to invoke Supremacy Clause immunity for actions taken within the scope of their federal employment. Recognizing this point would not end the Clark case, but it would focus the analysis where it belongs.
Trevor Morrison is a Professor of Law at Columbia Law School in New York, where he teaches and writes in the areas of constitutional law, federal courts, and national security law. In 2009, he served in the White House as an associate counsel to the President.