Opinion
Case No. 1:23-cr-287-MLB
2024-05-03
The State of GEORGIA, v. Sung H. KIM, Defendant.
E. Brian Watkins, Fani T. Willis, Fulton County District Attorney's Office, Atlanta, GA, for The State of Georgia. Donald Franklin Samuel, Kristen W. Novay, Garland, Samuel & Loeb, P.C., Atlanta, GA, for Defendant.
E. Brian Watkins, Fani T. Willis, Fulton County District Attorney's Office, Atlanta, GA, for The State of Georgia. Donald Franklin Samuel, Kristen W. Novay, Garland, Samuel & Loeb, P.C., Atlanta, GA, for Defendant. ORDER MICHAEL L. BROWN, UNITED STATES DISTRICT JUDGE
In January 2019, Defendant Sung Kim (an FBI task force officer) shot and killed Jimmy Atchison during an operation to execute an arrest warrant. A Fulton County grand jury charged Defendant with several state law offenses arising from Mr. Atchison's death. (Dkts. 1; 1-1.) Defendant removed those charges to this Court under the federal-officer removal statute, 28 U.S.C. § 1442. Georgia then moved to remand. The Court denied Georgia's motion after an evidentiary hearing. (Dkt. 2.) Georgia now renews its motion based principally on the Eleventh Circuit's recent decision in State v. Meadows, 88 F.4th 1331 (11th Cir. 2023). (Dkt. 21.) The Court denies Georgia's motion.
I. Former Officers
Section 1442 says "any officer (or any person acting under that officer) of the United States" may remove a state criminal prosecution to federal court. 28 U.S.C. § 1442(a)(1). The Court previously found removal was proper under this language because, although Defendant is now retired, he was an "officer . . . of the United States" when he shot Mr. Atchison. (Dkt. 2 at 4-6.) The Court also held removal was proper because Defendant "act[ed] under" other federal officers at the time of the shooting. (Dkt. 2 at 6 n.2.) Georgia claims the Court should revisit these conclusions because, after Meadows, former federal officers can no longer remove under Section 1442(a)(1). (Dkt. 21-3 at 7-9.) The Court rejects this argument.
It is true that Meadows held—for the first time in "the 190-year history of the federal-officer removal statute"—that only current federal officers are "officer[s] . . . of the United States" under Section 1442(a)(1). Meadows, 88 F.4th at 1338-43. It is also true that Defendant is a former federal officer and thus, contrary to the Court's earlier ruling, cannot remove as an "officer . . . of the United States." But Section 1442(a)(1) also permits removal by "any person acting under [an] officer." And Meadows does not address that theory, much less prohibit its application to former officers. (See Dkt. 26 at 2 (Georgia conceding "Meadows does not directly address the 'acting under' phrase of 1442(a)(1)").) Indeed, the Meadows defendant expressly declined to invoke the theory in his briefing to the Eleventh Circuit. See Brief for Appellant, State v. Meadows, 2023 WL 6235291, at *1 (11th Cir. Sept 18, 2023) ("This case involves . . . a prosecution against the federal officer, rather than someone purportedly 'acting under' him.").
Nor does the plain meaning of the statutory language—"any person acting under [an] officer"—exclude former officers from its reach. See Meadows, 88 F.4th at 1338 ("[T]he ordinary meaning usually controls."). To the contrary, the phrase "any person" encompasses individuals of any kind, including those who happen to be former officers. See Laperriere v. Vesta Ins. Grp., Inc., 526 F.3d 715, 726 (11th Cir. 2008) ("any" means "all," not just "some or all but a few"); 1 U.S.C. § 1 ("person" includes "individuals"). And the relevant time for determining whether such a person "act[ed] under" an officer is "when [he] took the actions complained of in th[e] case," not when his prosecution commenced or when he removed to federal court. Caver v. Cent. Alabama Elec. Coop., 845 F.3d 1135, 1142 (11th Cir. 2017); see Watson v. Philip Morris Companies, Inc., 551 U.S. 142, 147, 127 S.Ct. 2301, 168 L.Ed.2d 42 (2007) (Section 1442 permits removal if defendant acted under a federal officer when "carrying out the acts that are the subject of the [state court] complaint"); see also Ditcharo v. Union Pac. R.R. Co., 2024 WL 1433652, at *2 (E.D. La. Apr. 3, 2024) (Meadows does not preclude defendants who "formerly acted under federal officers" from removing under Section 1442(a)(1)). So individuals who previously worked under an officer—including former officers who no longer do—can still "act[ ] under" an officer within the meaning of the statute. To be sure, after Meadows, it is at least arguable that the "officer" under whom the removing defendant acted must be a current federal officer. But that potential condition is met here because Defendant's task force remains operational and at least one of the federal officers under whom Defendant acted (Task Force Coordinator Matt Winn) is still an FBI agent. See Georgia v. Kim, 1:23-cv-113-MLB (N.D. Ga.), ECF No. 29 at 21-22; (see Dkt. 24 at 14 ("Both Matt Winn and Ashley Johnson—officers whom Kim acted under—are still agents with the FBI, and the Task Force remains operational.")).
Georgia insists no federal officers of any kind—whether current or former—can remove via the "acting under" clause because, in Watson, the Supreme Court said the clause "applies to private persons." (Dkt. 26 at 3-4); see Watson, 551 U.S. at 151-52, 127 S.Ct. 2301. But Watson's focus on private persons is unremarkable because the removing defendant in that case happened to be a private entity. The court never said the "acting under" clause is limited to such entities. Indeed, Watson expressly approved a prior case in which the Supreme Court let a federal officer (a U.S. Army corporal) remove on an "acting under" theory. See Watson, 551 U.S. at 149, 151-52, 127 S.Ct. 2301 (discussing Davis v. State of South Carolina, 107 U.S. 597, 2 S.Ct. 636, 27 L.Ed. 574 (1883)). Other courts have likewise allowed federal officers to remove where they "act[ed] under" other officers. (See Dkt. 24 at 17-18 (collecting cases).)
In sum, even if Defendant is no longer an "officer . . . of the United States," he can still remove his case under Section 1442(a)(1) because he is a "person" who "act[ed] under" a federal officer during the operation in which he shot Mr. Atchison. The Court reached that conclusion in its initial order and nothing about Meadows requires a different result now.
II. Compelled Conduct
Georgia also claims removal is impermissible because "Defendant cannot show a federal officer or directive compelled him to shoot Atchison." (Dkt. 21-3 at 11.) But, to remove under Section 1442, a defendant need not show a federal official compelled him to take the specific action for which he is being prosecuted. In Davis, for example, the Supreme Court let a defendant remove his state murder case even though the shooting for which he was charged was "purely accidental" rather than ordered by the federal official under whom he was acting. Davis, 107 U.S. at 598, 2 S.Ct. 636. Defendant could remove because "the homicide which was charged against him as a crime took place while he" was "lawfully assist[ing]" a federal revenue officer "in the performance of his official duty." Id. at 600-01, 2 S.Ct. 636; see Watson, 551 U.S. at 149, 127 S.Ct. 2301.
Removal is appropriate here for the same reason. Defendant shot Mr. Atchison while helping federal officers conduct an official task force operation. At least some of the officers—including Task Force Coordinator Matt Winn—also exercised "control" over Defendant in connection with the operation or were otherwise Defendant's "federal superior[s]." Watson, 551 U.S. at 151-52, 127 S.Ct. 2301. That is enough to show Defendant "act[ed] under" a federal officer within the meaning of the removal statute; an additional showing of compelled conduct is not required. See id. ("acting under" a federal officer requires a relationship of "subjection, guidance, or control" and "an effort to assist, or to help carry out, the duties or tasks of the federal superior").
See, e.g., Georgia v. Kim, 1:23-cv-113-MLB (N.D. Ga.), ECF No. 21-2 at 1; id., ECF No. 29 at 34, 73, 75, 128, 130-132, 146.
Georgia cites three district court cases for the proposition that a "defendant who claims to be acting under an officer . . . . must prove [the] officer compelled his conduct." (Dkt. 21-3 at 10-11 (citing Dudley v. Upsher-Smith Lab'ys, Inc., 2007 WL 9711438 (N.D. Ala. July 26, 2007); Alsup v. 3-Day Blinds, Inc., 435 F. Supp. 2d 838 (S.D. Ill. 2006); McMahon v. Presidential Airways, Inc., 410 F. Supp. 2d 1189 (M.D. Fla. 2006)).) But all three cases involve distinguishable facts, predate a 2011 amendment that "broaden[ed] the scope" of the removal statute, Caver, 845 F.3d at 1144 n.8, and otherwise fail to persuade the Court that removal is permissible here only if a federal official compelled Defendant to shoot Mr. Atchison.
III. Conclusion
The Court DENIES Georgia's Renewed Motion for Remand (Dkt. 21). The Court SETS a hearing for May 14, 2024, at 10:00 a.m., in Courtroom 1906, Richard B. Russell Federal Building, 75 Ted Turner Drive, SW, Atlanta, Georgia 30303. The parties must be prepared to discuss the status of this case, the current Scheduling Order (Dkt. 17), and what, if any, changes are required to that schedule. The parties should meet and confer before the hearing and should be specific about any scheduling changes they seek. The Court notes the parties have not filed dispositive motions or Daubert motions, even though the Scheduling Order required them to do so by March 13, 2024. (Dkt. 17 at 1; see Dkt. 14 at 4 (Defendant stating that, although he filed a four-page motion to dismiss in September 2023, he would "re-file a formal" version of that motion by March 13, 2024).) The Court also notes the March 13, 2024 deadline expired during the parties' briefing on the impact of Meadows on this case. After receiving the parties' input, the Court anticipates entering a revised scheduling order that includes a new (later) date for the evidentiary hearing currently set for June 3-5, 2024.
SO ORDERED this 3rd day of May, 2024.