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The Rights Of A Federal Agent

By Andrew Ramonas

A Death In The Virgin Islands

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When an off-duty agent of the Bureau of Alcohol, Tobacco, Firearms and Explosives shot and killed a man in the Virgin Islands almost two years ago, the case received scant attention on the mainland. Since then, the incident has unfolded into a bitter legal battle pitting Justice Department officials against territorial authorities. It has laid bare the resentments behind the public façade of cooperation and amicability between Washington and St. Thomas. This four-part exclusive series explores the tragic shooting, the rights of an off-duty federal agent in the Virgin Islands, the tense relationship between federal and territorial authorities and the intensifying political debate in the U.S. Congress over whether the ATF agent should be honored as a hero before a territorial court has even ruled on his guilt or innocence.

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Part Two: The Rights Of A Federal Agent

Since that day almost two years when William G. Clark, a special agent of the Bureau of Alcohol, Tobacco, Firearms and Explosives, shot and killed a man in the Virgin Islands, Clark, his government employer and his lawyers have said the shooting was justifiable. Even so, he has been charged with manslaughter and faces trial in territorial court.

Territorial prosecutors in the Virgin Islands maintain that Clark acted excessively and illegally in September 2008 when he shot and killed Marcus Sukow, an apparently drunken neighbor, during a confrontation outside the condominium where both men lived. They have charged Clark with second-degree murder, voluntary manslaughter and two counts of unlawful use of a dangerous weapon. Clark has pleaded not guilty, is on bail and continues to work for the ATF.

Clark?s lawyers and the ATF, a Justice Department agency, which cleared him of wrongdoing after an internal inquiry, said he acted in compliance with ATF firearms rules. Clark was not actively working on a case when the shooting occurred, but ATF policies allow agents to carry firearms at all times and permit them to use lethal force whenever they believe their lives or the lives of others are threatened. The DOJ is paying for Clark’s legal defense.

Lawyers have said that case law indicates clearly that law enforcement officials, whether on or off duty, are justified in using lethal force in response to a threat, not just from firearms, but from any potentially lethal object, like a flashlight. They also said it was unusual for a federal law enforcement official to be tried in a local court.

Mark E. Schamel, a partner at the law firm of Schertler & Onorato LLP in D.C., and former Virgin Islands Attorney General Kerry Drue are representing Clark. They have said he was acting in self-defense. Clark has said he fired his government-issued revolver only after Sukow lunged at him with a heavy metal Maglite flashlight during a quarrel between Sukow and the man’s girlfriend. The ATF agent said the flashlight was at least a foot long.

Similar flashlights have gained notoriety for becoming weapons in the hands of police officers. Several major U.S. police departments have banned or limited the use of the club-like flashlights.

Schamel declined comment to Main Justice. Virgin Islands Assistant Attorney General Renee Gumbs-Carty, who is handling the prosecution, did not respond to requests for comment.

William G. Clark, a special agent of the Bureau of Alcohol, Tobacco, Firearms and Explosives, shot and killed a man in the Virgin Islands. He has said he fired the fatal shots in self-defense. (Photo: Provided)

The ATF agent’s trial was set to begin in July. But in June, Virgin Islands Superior Court Judge Brenda Hollar postponed the start of the trial until October after she concluded that territorial prosecutors withheld favorable evidence from the defense. Under the 1963 Supreme Court case Brady v. Maryland, prosecutors are required to turn over exculpatory information to the defense.

Clark?s lawyers have argued that he was acting lawfully and that, as a federal agent, he has been improperly charged in a territorial court. If there are any charges, defense lawyers have argued, they should be filed in federal court since Clark was acting within his capacity as a federal law enforcement officer at the time of the shooting.

?A local criminal prosecution of a federal officer has a profound impact on the ability of the federal government to perform its functions and to protect its citizens. The Supremacy Clause [of the Constitution] does not permit such a crippling limitation of law enforcement,? Drue wrote in a February court filing. The Supremacy Clause requires state court judges to uphold federal laws even if they conflict with state law.

But the Clark case has also focused attention on another, somewhat obscure fact, with potentially wide implications: territorial law does not explicitly recognize agents like Clark as law enforcement officials.

In any event, territorial and federal judges have rejected the defense team’s argument. Hollar ruled in March that the Supremacy Clause does not apply to the Virgin Islands. (The Virgin Islands is seeking congressional approval of  a new territorial constitution, drafted last year, that does not include express recognition of the Supremacy Clause.)

Chief Judge Curtis Gomez of the U.S. District Court of the Virgin Islands also ruled against Clark, saying in June 2009 there was insufficient evidence to show that he was acting as a federal agent at the time of the killing, in effect, allowing the local trial to proceed.

Clark’s lawyers asked the judges to reconsider their decisions. The DOJ even filed a statement with the territorial court, asking the judge to reassess her interpretation of the Supremacy Clause.

But the positions of Gomez and Hollar did not change, allowing the territorial court to proceed. Defense lawyers have appealed to the 3rd U.S. Circuit Court of Appeals.

As for the proposed Virgin Islands constitution, in a February opinion, the DOJ Office of Legal Counsel said it would have preferred that the U.S. Congress or a territorial constitutional convention include a clear recognition of the Supremacy Clause in the constitution. But the OLC said the constitution is otherwise in “substantial compliance” with U.S. law governing the creation of a constitution for the territory.

At a hearing in March, Hollar seemed to reflect on the deeper tensions in the Virgin islands over the rights of a U.S. territory, when she said, “not every provision of the Constitution is applicable in the Virgin Islands? and noted, for example, that territorial residents don?t have a constitutional right to vote for the U.S. president.

?As soon as I put foot in here as a resident of the Virgin Islands, I don?t have a right to do no voting or anything and I?m satisfied with that, but that is the reality,? Hollar said, according to a court transcript.

Stephen Vladeck, a constitutional law professor at American University, said the Virgin Islands is obligated to recognize the supremacy of U.S. law. Though he said federal statutes and not the Supremacy Clause may force that obligation.

“It is possible that [Hollar] is technically correct,” Vladeck said. “But it is a strange, thin hair to split.”

Monday, Part Three: Rising Tension In A U.S. Territory.

Full post as published by Main Justice on August 13, 2010 (boomark / email).