Does Double Jeopardy prohibit prosecution, for the same event, in both Federal and State court? The common understanding of the 5th Amendment's prohibition on being tried twice for the same offense is that no trial can be held which would put a person in a risk of loss of liberty if they have already been tried for that even. It's been suggested, in comments to an answer to another question on this site, that it is still possible to try someone in a state court even after a Federal trial has started and has been resolved. The comment references this claim, by a former state prosecutor, to support their argument. I am having trouble reconciling this with the following facts: the 5th amendment does not mention that it only applies to crimes &quot;against the United States&quot;, which is the language that is usually used to indicate that its application would be limited to the Federal jurisdiction. the 5th amendment's double jeopardy clause has been incorporated into protections which states must afford their citizens. So it appears that its jurisdiction is both Federal and State. Other than &quot;it's just federalism&quot; (which is obviously not absolute) what is the justification for this, if it's true? More specifically, what is the origin of such a legal theory? Is there a case precedent which established this understanding or has this simply been this way and has gone unchallenged?
Does double jeopardy prohibit prosecution, for the same event, in both federal and state court? No. Key precedents on the question are US v. Lanza (1922) and Abbate v. US (1959). From Lanza: The defendants thus committed two different offenses by the same act, and a conviction by a court of Washington of the offense against that state is not a conviction of the different offense against the United States, and so is not double jeopardy. From Wikipedia's article on Abbate: Abbate asked that the Court overrule its prior decision, which the Court declined to do. The Court reasoned that overruling Lanza would result in serious and undesirable consequences. Particularly, the state conviction here resulted in only three months' imprisonment, while the federal conviction made up to five years of imprisonment available. The Court deemed this potential disparity to be problematic. The only way to ensure that federal law enforcement interests would be vindicated under such a regime would be to displace state power to prosecute actions that also constitute federal crimes, which would be a massive shift in the balance of criminal power as between the states and the federal government. In a comment, you raise a question about the last sentence: &quot;The only way to ensure that federal law enforcement interests would be vindicated under such a regime would be to displace state power to prosecute actions that also constitute federal crimes,&quot; seems to state that not displacing state power to prosecute, under such circumstances, would keep the law enforcement interests un-vindicated (which would mean unjustified). So the only justified thing to do would be to try under the Federal law and to not try under the state law. &quot;Vindicate&quot; here does not mean justify but rather maintain or substantiate. The point is that if double jeopardy protected against prosecution by the federal government for a crime that has already been charged under state law, then states could effectively neuter federal crimes with which they disagreed by establishing a crime with identical elements and a token punishment. Another way of avoiding this outcome without permitting separate state and federal prosecutions for the same crime would be to prohibit state prosecutions altogether for acts that are also federal crimes. In other words, this says that the court found that the prohibition against double jeopardy allows these separate prosecutions because prohibiting them would require a &quot;massive shift&quot; in the responsibility for enforcing criminal law away from the states and toward the federal government. (Of course, this works both ways; if double jeopardy applied across sovereigns then the federal government could also neuter state laws. More generally, the current approach to double jeopardy may be seen as maintaining the balance of power between the states and the federal government, more than as protecting the interests of one side over those of the other.)
In order to challenge a search at trial via an evidence suppression motion, the particular defendant has to have Fourth Amendment &quot;standing&quot;1 with respect to that search: Rakas v. Illinois, 439 U.S. 128 (1978). From the syllabus: Fourth Amendment rights are personal rights which ... may not be vicariously asserted ... a person aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed. Subject to the various exemptions to the exclusionary rule discussed at this question, the evidence in your scenario would not be admissible against Bob, but would be admissible against Rob. This does not necessarily mean that Bob would go free. As noted in that other question, if police/prosecution have other evidence, independently gathered, or sufficiently attenuated from the illegal search, they may still have a case against Bob. This also doesn't mean that an unconstitutional search of a person who will not even be prosecuted is without a remedy. See this answer for a discussion of civil remedies available for a person who has suffered an unconstitutional search. 1. The Court has distanced itself from the term &quot;standing&quot; in this context, so I am using it somewhat colloquially as it is still in common usage in this sense. The Court instead just conceives of whether the defendent even experienced a Fourth Amendment search; the notion of standing is either redundant with or subsumed by such analysis.
Double jeopardy does not apply to different offences [N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb... The Supreme Court has held that it means what it says - murder and rape are different offences and so the double jeopardy clause is not triggered. However, if an offence requires that the same elements (or a subset of them) be proved, then they are the same offence. So, for example, both murder and rape normally incorporate the elements of common assault - a person acquitted of either murder or rape cannot subsequently be charged with common assault. Further, the principle of res judicata applies to criminal cases as well as civil cases. Therefore any fact or issue of law that was decided in the first trial cannot be reagitated in the second.
Yes. The precedent is President Gerald Ford's pardon of his predecessor Richard Nixon in proclamation 4311 before any possible prosecution had started. The pardon was granted specifically to prevent the disturbance of &quot;the tranquility to which the nation has been restored&quot; by &quot;the prospects of bringing to trial a former President of the United States&quot; (emphasis mine). It is noteworthy though that a pardon can be rejected by the recipient, and that there may be good reason to do so, because accepting one is an admission of guilt.1 In the words of the Supreme Court (Burdick v. United States, 236 U.S. 79 (1915): There are substantial differences between legislative immunity and a pardon; the latter carries an imputation of guilt and acceptance of a confession of it [...]. (Again, emphasis mine.) Proactively pardoning large swathes of current and former government officials, family members and other people connected to the Trump administration would therefore be a double-edged sword: It surely may save a lot of the money and headache coming with being the target of an (even unsuccessful!) investigation; but it may also amount to admitting that the Trump administration was essentially a criminal organization. 1 As always, things are a bit less clear-cut when one takes a closer look. Because I googled &quot;prospective pardon&quot; after the correct remark by JBentley I stumbled upon the entirely relevant and eminently readable Congressional Research Service reports on pardons. The first one is a &quot;pardons FAQ&quot;, the second one is a more thorough legal exploration of what pardons actually do. The bottom line is that the Supreme Court and Federal Courts have edged away from a 19th century opinion (Ex parte Garland, 71 U.S. (4 Wall.) 333, 380-81 (1866)) which viewed a pardon as an all-encompassing expungement. Newer decisions (prominently, Burdick v. United States, 236 U.S. 79, 86 (1915) which I quoted) don't.
Federal Civil Rights Liability Qualified immunity is a doctrine that applies to lawsuits under 42 U.S.C. § 1983 seeking compensation for an intentional violation of constitutional rights under color of state law. The qualified immunity inquiry is not reached in the first place if the prima facie case is not established because the conduct allegedly violating a constitutional right under color of state law, even if it is a well established constitutional right (i.e. one memorialized in a reported and controlling appellate court decision that is factually similar), if the action was merely negligent rather than intentional. Thus, most likely, there is no federal civil remedy to the victim, unless even the use of the taser would have been a violation of a well established constitutional right under color of state law. Non-deadly force, like a taser, is subject to a lower threshold of justification than deadly force, like a firearm. Of course, under general Fourth Amendment principles applicable to the states, an attempted arrest which appears to be what the OP describes, must be supported by probable cause that a crime was committed for which an arrest would be authorized. So, if this is the violation of rights alleged, there may be a federal civil rights remedy. But, further examination of the facts show that there was apparently a warrant for the arrest of the person shot outstanding. So the officer probably has a legal basis to use non-deadly force to make an arrest pursuant to the outstanding warrant, but probably did not have a legal basis to use deadly force to make an arrest. Federal Criminal Liability The most common charge under federal criminal law for excessive use of force by a police officer, is a criminal violation of civil rights. But this, like the civil remedy, requires a showing of an intentional violation of civil rights which the OP tends to suggest is absent unless the officer lacked probable cause to make an arrest. State Law Civil Liability At the state level, law enforcement officers acting under color of state law are immune from civil liability except as authorized by state law in an exception to sovereign immunity. Generally, there is no exception to sovereign immunity for a negligent use of force by a police officer. So, the police officer probably can't be sued successfully by the victim's estate under state law. State Criminal Law Considerations For criminal law purposes, whether or not the law enforcement officer's actions were a crime under state law would dependent upon both the elements of the offense: probably manslaughter or negligent homicide in this case, and the scope of force authorized under state law in the case of a law enforcement officer seeking to arrest a fleeing suspect. Usually, under state law, the use of reasonable force to make an arrest supported by probable cause is allowed and the use of deadly force to make an arrest support by probable cause is allowed only if there is a threat to the public based upon probable cause to believe that a particularly serious violent felony was committed. Qualified immunity is not applicable to state criminal law liability, although express statutory defenses in a state criminal statute might be similar in some cases. Caveat Of course, all of that analysis assumes that the story of the officer's motive and intentions was truthful. There is very good reason to be skeptical of this fact and to believe that the use of a firearm was not a negligent mistake, and that race was a motivating factor. Simply saying that one's motives were good is not a free pass and a jury doesn't have to believe the law enforcement officer.
Regarding the second part of your question: The 7th Amendment does not apply in state court, so any right to a jury trial there would depend upon the constitution of the State of Texas (specifically Article I, Section 15 of the Texas Constitution). This is the case because the Bill of Rights applies by its terms only to the federal government. Under the Selective Incorporation doctrine, the 14th Amendment causes some of the Bill of Rights to apply in state court but not all of it. In particular, the 7th Amendment is one of the parts that does not apply in state court as determined in the U.S. Supreme Court cases of Minneapolis &amp; St. Louis R. Co. v. Bombolis, 241 U.S. 211 (1916) and Pearson v. Yewdall, 95 U.S. 294 (1877). The 11th Amendment would probably bar a federal lawsuit over this matter, since the proper defendant would probably be the State of Texas which is immune from suit in federal court except by another state or the United States. You would still have a right to assert your substantive federal constitutional rights in any state court litigation, however.
This is largely congruent with* the doctrine of laches. The basic idea, under common law, is that you can lose rights by failing to assert them. This is generally important for many reasons, but specifically in the case of appeals: The argument should have been brought before the trial court. Justice is not a game, but it's important to recognize that the party trying to raise the argument had an opportunity to do so already. They have given up their right to raise this argument, and extending them the privilege of doing so is (for the following reasons) not good for the system. Courts of appeals are typically not well-equipped to evaluate factual evidence. It is not their area of expertise. Witnesses or evidence may be less available. It's just not practical to try to adjudicate factual issues on appeal, most of the time. If anyone could get an appeal by bringing new factual arguments, then everyone would do that. You'd bring your strongest argument before the district court, and then if that fails, bring the second strongest before the circuit court. That way, you get an extra trial. This is inefficient. Allowing factual arguments on appeal would encourage attorneys and their clients to strategically bring different facts before different courts. This kind of forum-shopping is harmful because it has little to do with who has the stronger overall case, and more to do with who has the better lawyer. * "Congruent with" is not the same as "an instance of"; this rule is not formally an application of laches. It just happens to share the same justification.
Yes and No. The Federal U.S. Government as well as each individual state and territory claim Soverign Immunity to a limited degree. In the case of Federal Government, they claim Soverign Immunity to a near limitless degree (more on this in a moment), while States and Territories claim &quot;State Soverign Immunity&quot; which grants them immunity with respect to all soverign powers granted under the U.S. Constitution. To clarify, each U.S. State is seperately soverign in all matters not explicitly allocated to the Federal Government by the U.S. Constitution and all constitutionally written laws. Where the Constitution does not in writing claim a power for the federal government nor reserver a power for the state government, the power is assumed to be state government. So a State can claim immunity for a police situation but not a law it makes regarding immigration or foriegn policy, since that is the exclusive wheelhouse of the Feds. Per the 11th amendment, states can only be sued in state court by citizens of the state, while non-state citizens wishing to sue a state must sue in the Federal Court (Which for the purposes of the trial may adopt the defendant State's laws and regulations for the purposes of questions of fact and law brought up in the suit). All U.S. States and the Federal Goverment additionally wave Soverign Immunity under specific conditions outlined in laws. In the case of the Federal Government, the laws governing when this immunity is waived are governed by the Federal Torts Claims Act (1946) and the Tucker Act (1887). The FTCA covers intentional torts by the Federal Government, while the Tucker Act typically covers matters related to contractual obligations or monitary interactions with the federal government. Things that may be sued for include but are not limited too: Intentional Torts committed by Government Agents in their Official Capacity (i.e. When the FBI violates your rights or maliciously investigates you). Contractual disputes where the Government is a party to the Contract, either in written or implied terms. Constitutional Claims (i.e. The Government may have violated the Constitution. These tend to be for non-monitary relief such as mandemuses, though the 5th Amendment's Taking Clause can be invoked of the government took property and does not justly compensate.). Individual Agencies of the Government when the monitary claim is not drawn from the U.S. Treasury (the agencies own allocated budget is used to pay). Refund for taxes paid In all cases, a Judge will determin if the Government, under the laws, can be sued. If in the example of a government employee being sued, the Justice Department will first make a determination if the employee was acting as an agent of the government when they committed the tortious act, and then will declare themselves Respondent Superior through the agency of employement. From there, the case becomes a suit against the Federal Government and FTCA immunity waiver is determined by a Judge. For example, lets say you (Mr. Rapt) sue Special Agent Jimmy Jones of an intentional tort that he committed in the course of his duty as an FBI agent. The DOJ will first declare that they are Respondent Superior in the case of Rapt v. Jones, thus turning the case to Rapt v. United States Government, Department of Justice, Federal Beura of Investigations, and Jones (Rapt v. United States, et. al.). From here, the Judge who gets the case then determins if the U.S. Government under FTCA can be sued by Rapt, based on Rapt's citizenship status (usually permanent legal residents are covered as citizens for this point, but I can say for certain in this particular law), ripeness (the suit must be filed within 2 years of the incident or first knowledge), and immunity waiver under FTCA. In the case of the State Government, they should have similar laws, but I'm not going to identify all 50 individual laws here. Additionally, the 11th Amendment permits U.S. Congress to waive a State's immunity to suit in certain cases (mostly comes up with the Due Process Clause in the 14th Amendment.). As a fun point, in all cases where a government appears as a defendant in a suit, it is automatically a Bench Trial, as the government usually include a waiver of their right as defendant to a jury trial. The thinking here is that, as a country that was founded by rebelling against the government, a jury of 12 of the government's citizens aren't going to give them any slack at trial, where as a judge (who they pay) is much more likely. TL;DR: Both questions are yes. The immunity is waived under federal law for certain cases, but it is a judge who will make the ruling if the specific case meets the aformentioned waived immunity.