I’ve practiced in many different areas– from large cities to border zones, criminal and civil courts, from Guantanamo to the Pine Ridge Indian Reservation. Something that always bothers me is intellectual dishonesty. One such issue came up for me in practicing in “Indian country,” as the federal law books call the reservation. I saw that when tribal officers are sued, the courts say “these are tribal police officers, not federal law enforcement officers,” thereby getting the federal government “off the hook” for civil liability. But when a young Native American kid, like Justin Janis, swats at a tribal officer lunging to arrest him, the officer is suddenly a full-fledged “federal law enforcement officer” for purposes of 18 U.S.C. Section 111, a penal code section criminalizing anyone who “forcibly assaults, resists, opposes, impedes, intimidates, or interferes with” a federal law enforcement officer. And when tribal officers make mistakes in search warrants or criminal procedure, guess what they are now? If you’re as cynical as me, you guessed it– no longer “federal law enforcement officers” beholden to the federal rules of criminal procedure.
The rationale is simple enough– the federal government doesn’t want to pay for civil plaintiffs who sue the tribal officers. But they want to bring the full weight of the federal prosecution arm on anyone who touches a cop on the reservation. Don’t get me wrong, I understand why we want to criminalize assaults on officers. That is a given. But what bothers me is that the federal government wants to have it both ways, and define “federal law enforcement officer” two different ways in order to protect itself against civil liability and excuse any governmental wrongdoing.
I filed an appeal on the issue, and the Eighth Circuit found the jury instruction error (which was only a legal technicality, and not the full picture of my problem with this intellectual dishonesty) was “harmless.” See United States v. Janis, 810 F.3d 595 (8th Cir. 2016). I think the law has it wrong. And I still believe that something should be done to correct this legal wordplay. Either a tribal officer is a federal law enforcement officer or not, but having it both ways is simply semantic gymnastics.