For most of American history, federal law enforcement consisted only of U.S. marshals serving in the territories of the West. Their legacy is decidedly mixed. Many were appointed purely for their political connections, and graft and corruption were not unusual. The first U.S. marshal for Colorado Territory was accused of embezzling federal funds. The third marshal resigned from office after being charged with larceny and passing counterfeit money. The fourth was convicted of fraud and sentenced to two years at Leavenworth. A U.S. marshal could also hire his own deputies. A deputy was not a salaried employee but earned income through the collection of fees, reimbursement for expenses, and the occasional reward. The system was ripe for abuse.
As local law enforcement developed, conflict and jurisdictional disputes with federal marshals inevitably resulted. One of the most famous disputes involved two of the Old West’s most colorful characters, David Terry and David Neagle. Known for his Confederate sympathies and fiery temper, the Kentucky-born Terry served as a Texas Ranger during the 1840’s and as an officer in the Mexican War. Settling in California, he began practicing law and became the chief justice of the California state supreme court in 1857. In 1859, he killed Sen. David Broderick in a duel. During the Civil War, he served with the 8th Texas Cavalry and was wounded at Chickamauga. He returned to California at the conclusion of hostilities and resumed practicing law. In the late 1880’s, he represented Sarah Althea Hill, millionaire William Sharon’s mistress, who claimed that she and Sharon had been secretly married. She was suing for a divorce. Miss Hill prevailed in a San Francisco court, was granted a generous settlement, and soon married her attorney, David Terry.
William Sharon appealed the case to the federal circuit court in California. Terry now found himself facing Judge Stephen J. Field, who had been a close friend of Senator Broderick. Judge Field, who was also an associate justice of the U.S. Supreme Court, ruled against Miss Hill, now Mrs. Terry, and the explosive Terry vowed vengeance. Deputy U.S. Marshal David Neagle was assigned as Field’s bodyguard. Born to Irish-immigrant parents, Neagle was reared in San Francisco. In 1862, at age 15, he was off to the mining camps, not only of California but of Nevada, Idaho, Montana, and Arizona. By his early 20’s, he was a feared gunfighter. An enterprising sort, he staked claims, speculated in mining stock, and operated a saloon. During the early 1880’s in Arizona, he served first as a sheriff’s deputy for Cochise County and then as city marshal of Tombstone. He returned to California, a seasoned sourdough and savvy shootist. San Francisco political boss Chris Buckley got Neagle commissioned a deputy U.S. marshal.
Coincidence put David Terry and Stephen Field on the same train in the San Joaquin Valley en route to San Francisco in 1889. Seeing Field, the 6’3″ 240-pound Terry rushed at him and punched him in the face. Reacting instantly, Neagle drew and fired two shots in rapid succession. One hit Terry in the head. The other hit him in the chest. He dropped to the floor of the railroad car, dead.
Sheriff R.B. Purvis of Stanislaus County, who also happened to be on the train, put Neagle under arrest. At the next stop, Sheriff Purvis took Neagle off the train and escorted him to Stockton, where San Joaquin County Sheriff Tom Cunningham put Neagle in jail. Neagle was charged with murder, and a justice of the peace ordered him held without bail. A mob of Terry supporters—Terry had lived in Stockton and was a popular figure there—began milling menacingly around the jail, shouting for Neagle to stretch hemp. Back in San Francisco, Judge Field had a special train dispatched, carrying a U.S. marshal, his deputies, and an attorney armed with a writ of habeas corpus for the release of Neagle. Before dawn, the train reached Stockton. Sheriff Cunningham reluctantly complied with the writ, though complaining that the homicide had been committed within his jurisdiction and that Neagle was lawfully his prisoner. Once in San Francisco, Neagle was lodged in jail but released upon posting bail of $5,000.
A battle between federal authorities and the state of California now began in the case Cunningham v. Neagle. The U.S. attorney in San Francisco argued that the state could not prosecute a federal officer for performance of his duties—in this case, David Neagle, for protecting Supreme Court Justice Stephen Field. The attorney general of California and the district attorney of San Joaquin County argued that the state and county had the authority to try and punish the perpetrator of a crime committed in their jurisdiction. The state lost and appealed the case to the U.S. Supreme Court. In 1890, the court, with Justice Field recusing himself, issued a precedent-setting decision in what is called In Re Neagle. Majority opinion held that, in killing Terry, Neagle “was acting under the authority of the law of the United States, and was justified in so doing, and that he was not liable to answer in the courts of California.” Essentially, In Re Neagle established the power of the federal government to supersede a state’s criminal courts and to grant immunity to officers doing their duty. It was another blow to states’ rights.
Since the 1880’s, the number of federal law-enforcement agencies and the number of federal agents has grown exponentially. While most citizens are familiar with the Federal Bureau of Investigation, the Drug Enforcement Administration, the Border Patrol, the Federal Air Marshal Service, and the Secret Service, few can name the Bureau of Alcohol, Tobacco, and Firearms or the IRS Criminal Investigation Division, and almost no one knows of the Postal Inspection Service, the Bureau of Engraving and Printing Police Force, United States Mint Police, Diplomatic Security Service, National Oceanic and Atmospheric Administration Fisheries Office for Law Enforcement, Government Printing Office Police, Federal Reserve System Police, Hoover Dam Police, and a dozen others of the same ilk.
The ultimate unknown, though, has to be the National Institutes of Health Police. From the name, it would seem they are busy arresting guys turned in by their doctors for contracting the clap. I can envision some poor Marine PFC back from Dog Patch being dragged off by the Health Police and shouting in protest, “But the corpsman gave me a penicillin shot!” Actually, the mission of the Health Police is less intrusive. In the agency’s words, it is “to protect our country’s national treasure: Scientific Research and the NIH research community, and further to ensure that the mission of NIH is not impeded by personal attacks, loss of assets, criminal activity or acts of terrorism.” I suppose it is essential that the health cops are on the beat—and they do have a good-looking badge.
The FBI, as we know it, did not exist until the 1920’s, although its origins go back to 1908, when President Theodore Roosevelt and Attorney General Charles Bonaparte created a force of “Special Agents” in the Department of Justice. The force began with ten agents. It was expanded to 34 in 1909 and dubbed the Bureau of Investigation. The move was part of Roosevelt’s Progressive Era reforms to end corruption in government. His action was not without controversy. There were still those Americans who believed that the federal government’s jurisdiction should be limited to foreign affairs and regulating interstate commerce.
In 1909, there were few federal crimes, and the Bureau of Investigation concerned itself with cases involving antitrust, bankruptcy, naturalization, and land fraud. The Bureau’s responsibilities increased in 1910 when Congress passed the Mann (or White Slave) Act, making it a federal crime to transport women across state lines for “immoral purposes.” World War I saw a dramatic expansion in the power of the federal government and the creation of federal laws. As a consequence, the Bureau’s power increased to include enforcement of the Espionage, Selective Service, and Sabotage Acts. The Bureau was also made responsible for investigating enemy aliens.
Modern transportation added to the Bureau’s role in 1919, when Congress passed the National Motor Vehicle Theft Act. The same year, Congress passed the Volstead Act, which prohibited the manufacture, sale, transportation, or importation of intoxicating liquors. There never has been a better example of the road to hell being paved with good intentions. One of the good-intentioned Progressive Republicans of the era was J. Edgar Hoover, who had worked for the Department of Justice since 1917. He first supervised the Enemy Aliens Registration Section and later worked in the General Intelligence Division, investigating suspected anarchists and communists. In 1924, he was appointed director of the Bureau and would remain at that post until his death in 1972.
As Prohibition-induced crime skyrocketed during the 1920’s, Hoover expanded the size and scope of the Bureau. By 1934, he had tripled the number of field offices, until there was one in every major city, and doubled the number of agents. Agents also became ever more involved in street action. The first agent to die in the line of duty was Ed Shanahan, killed by a car thief in 1925. Hoover spared no effort to make his agents as professional as possible, including establishing a formal training course. He remarked in 1925,
The Agents of the Bureau of Investigation have been impressed with the fact that the real problem of law enforcement is in trying to obtain the cooperation and sympathy of the public and that they cannot hope to get such cooperation until they themselves merit the respect of the public.
Although Prohibition came to an end in December 1933, there were several new federal crime laws passed during the early 30’s that continued to expand the powers of the Bureau. Most of these were aimed at gangsters, but kidnapping also became a federal crime after the abduction of the Lindbergh baby. During this same period, the Bureau established its Technical Laboratory, described by journalist Rex Collier as “a novel research laboratory where government criminologists will match wits with underworld cunning.” In 1935, the Bureau formally became the Federal Bureau of Investigation, and the FBI National Academy was founded to train both its own agents and police from other agencies in modern investigative methods.
World War II brought another increase in the number of field offices and the quintupling of FBI agents, now principally focused on sabotage, espionage, and subversion. With conscription back for the first time since World War I, the FBI was also responsible for tracking down draft evaders and deserters. The FBI also tracked down Japanese who violated the West Coast evacuation order and helped to break strikes that were deemed threatening to the war effort.
The end of the war did little to diminish the role of the FBI. With Stalin announcing that more war was inevitable until the global triumph of communism, the FBI was tasked with investigating the American Communist Party and its many front organizations. Moreover, the Atomic Energy Act of 1946 required the FBI to determine the loyalty of persons having access to restricted atomic-energy data. Later, presidential executive orders gave the FBI the responsibility for investigating any federal employee accused of disloyalty. By the end of the Korean War, the number of agents had increased to more than 6,000.
Throughout the 1950’s and 60’s, Congress passed umpteen new federal laws, including several racketeering and gambling acts, the Crimes Aboard Aircraft Act, Federal Fugitive Act, Sports Bribery Act, and Civil Rights Acts. The Omnibus Crime Control and Safe Streets Act of 1968 allowed the FBI to employ electronic surveillance. More ominous than the Omnibus Act, though, was the Racketeer Influenced and Corrupt Organizations Act of 1970 (RICO). Although intended as a weapon against organized crime, RICO allows the FBI to investigate all manner of groups, whether formally organized or not, that have only tenuous connections to crimes or criminal conspiracies, and it provides for forfeiture of property.
Under RICO, a homeowner in my county had his house confiscated because he had leased it to someone who later trafficked in drugs at the location. The homeowner had no connection to the drug dealer, had not known him before renting him the house, and had no knowledge of his illegal activities. At his own expense, the homeowner fought back in court. The feds prevailed, arguing that the drug activity was an open secret in the neighborhood and he should have known of it. Since the county sheriff’s department was part of the task force that made the bust, a portion of the proceeds from the sale of the house enabled the department to buy a new helicopter.
Seizure of property, including such big-ticket items as estate homes and luxury boats, creates incentives that clearly have led to abuse. As abuses of apparently innocent parties grew during the 1980’s and 90’s, enough citizen outrage was generated for Congress to pass the Civil Asset Forfeiture Reform Act of 2000. Under the act, courts can now authorize an attorney to represent a person who has had property seized and is unable to pay for legal counsel. The court will pay reasonable attorney fees regardless of the outcome of the case.
Despite sharing occasional seized assets, the FBI’s (and other federal law-enforcement agencies’) relationship with local police is not always mutually beneficial and cooperative. A retired veteran of the LAPD, Max Hurlbut, who served on the force from the late 50’s through the mid-80’s and later served as a police chief in Alaska and in Arizona, told me that there were problems with federal authorities, including the FBI. Agents were often reluctant to share information with the LAPD, said Hurlbut, and viewed themselves as more sophisticated and professional than regular policemen. Having earned a master’s degree in criminal justice and served as a lieutenant colonel in the reserves, Hurlbut did not take too kindly to the supercilious attitude of some of the agents. Other retired officers told me similar stories.
Most agents Hurlbut worked with had no real cop-on-the-beat experience and “no idea of what’s involved in the use of force and violent confrontations.” Agents could even seem inept when conducting surveillance, supposedly an FBI specialty. Hurlbut recalled seeing agents at the San Pedro docks on stakeout, “wearing suits in an unmarked car festooned with antennae.” He is not particularly impressed with the FBI’s National Academy, either. Although the FBI refers to the academy as the “West Point” of law enforcement, he considers the course there “very general and basic.” Because of differences of opinion with the FBI in the days of Chief Parker, the LAPD was not eager to send its officers to the Bureau’s academy. Moreover, the LAPD thought that it had developed, under Chief Parker, the finest police academy in the world. This remained the department’s attitude into the 1980’s, well past Chief Parker’s death in 1966. What J. Edgar Hoover was to the FBI, William H. Parker was to the LAPD. He ran the LAPD like a military command. Some said he ran the city. There was bound to be friction with the feds.
Hurlbut and other retired LAPD officers told me that what the feds have in abundance are funds and resources that local police agencies cannot begin to match. However, these very funds and resources are often used as weapons to force local police to comply and conform to federal demands and practices. Listening to the cops reminded me of President Jimmy Carter holding back highway funds for states that would not set their maximum speed limits at 55 mph or erect highway signs with distances in kilometers.
Although there is certainly a need for federal law-enforcement agencies, the federalizing of many crimes and the expansion of federal jurisdiction often results in less effective and more expensive policing and, more importantly, the loss of local control and American liberty. San Joaquin County Sheriff Tom Cunningham may have been on to something.