Rachel Moran (University of St. Thomas – School of Law (Minnesota)) has posted The State Power to Investigate Federal Agents (Washington and Lee Law Review, forthcoming) on SSRN. Here is the abstract:
States unquestionably possess authority to investigate and prosecute violations of their criminal laws. But when the potential suspect is a federal law enforcement officer, difficult questions arise about both the scope of states’ authority and their practical ability to exercise it. Federal officers are not exempt from state investigation simply because they were acting under color of law. At the same time, federal agencies may control much of the evidence necessary for the state to determine whether prosecution is appropriate. States’ ability to investigate these potential crimes encounters serious practical barriers when federal agencies refuse to share evidence.
Courts and scholars have devoted virtually no attention to how states should investigate potential crimes by federal officers when federal agencies obstruct those investigations. This Article addresses that problem. Prompted by disputes between Minnesota and the federal government after federal agents shot three Minneapolis residents in early 2026, the Article examines the respective authority of state and federal governments when states seek to investigate federal officers. The Article makes three principal contributions. It first demonstrates that states retain authority to investigate crimes by federal officers even though agents may claim immunity from prosecution.
Next, the Article turns to a practical obstacle to states exercising that authority: access to evidence controlled by federal agencies. Existing doctrine governing demands for evidence is confusing and often too deferential to the whims of federal agencies. This Article argues that while federal regulations may establish procedures for responding to state requests, they cannot create a substantive privilege to withhold evidence.
Finally, the Article proposes a five-step framework for resolving federal-state disputes over investigative evidence. The framework acknowledges that federal agencies may occasionally have legitimate reasons to withhold evidence, while ensuring independent judicial review of agency refusals and appropriate consideration of states’ interest in enforcing their criminal laws.
Recommended!
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