Oregon Attorney General Ellen Rosenblum is appealing a federal judge’s decision to move a criminal case involving an agent of the U.S. Drug Enforcement Administration to federal court. The decision set the stage for the agent to argue he is immune from being prosecuted for a state crime because he was on duty at the time tracking a major drug dealer.
The state Department of Justice intends to challenge U.S. District Judge Michael McShane’s order in the Ninth U.S. Circuit Court of Appeals, according to department spokesman Roy Kaufmann.
Rosenblum’s agency will argue that the case involving DEA Agent Samuel T. Landis should be tried in Marion County Circuit Court, where he was charged in September with criminally negligent homicide. Landis, 38, admitted last month that he ran a stop sign and killed Salem cyclist Marganne Allen, according to court records.
The Justice Department told Salem Reporter that it is arguing federal courts don’t have authority over the criminal prosecution because there is no justifiable federal defense against the charges.
“Because the federal courts lack jurisdiction, the case should return to state court to be handled like other state prosecutions,” Kaufmann said in an email Tuesday morning.
The agency said it would file its appeal under seal, meaning it won’t be available to the public. It did so “in an abundance of caution” because its appeal refers to evidence which Landis’ attorneys stamped confidential, according to Kaufmann.
He said the Justice Department has asked an appeals court judge to unseal its filing. That decision will come after Landis’ attorneys have a chance to explain why the appeal should stay secret.
Rosenblum is appealing at the request of Marion County District Attorney Paige Clarkson, whose office is continuing as prosecutors in federal court.
The appeal comes a month after McShane decided on Dec. 12 to move the criminal case to Eugene U.S. District Court because the agent was on duty as part of a team surveilling a major drug dealer at the time of the fatal collision.
The move to federal court allowed Landis to argue he is immune from prosecution. That legal defense does not exist under state law and could mean the federal charge would be dropped.
McShane said at the hearing that Landis as a DEA agent was tasked with enforcing federal drug laws, which includes surveillance. He said Landis’ attorneys proved that was a valid defense for why he ran a stop sign and killed Allen, the 53-year-old cyclist, according to a court transcript obtained by Salem Reporter.
The judge’s reasoning for transferring the case was based on secret evidence rather than witnesses. Marion County prosecutors and Landis’ attorneys agreed to stamp their evidence confidential and it remains sealed from public view in the federal court system.
Landis’ attorneys said in court filings that he and several other undercover officers at the time of the collision were surveilling a person suspected of trafficking large amounts of fentanyl in the Salem area. They said Landis lost sight of the drug dealer and was trying to regroup when he collided with the cyclist.
Meanwhile, prosecutors argued at the hearing that there were no plans to arrest the suspect that day or disrupt the drug trafficking ring. Marion County Deputy District Attorney Ashley Cadotte said agents were only intending to gather information, and that “more than enough” of them were available to keep sight of the suspect, according to the court transcript.
McShane said at the hearing that the federal immunity defense was intended to protect law enforcement officers who need to make split-second decisions. He said Landis only had to prove that he had a valid federal defense – not that his defense would win – to justify his case being moved to federal court.
Landis’ attorneys also said in their court filing that DEA policy and police practice allows for violating traffic laws in certain circumstances. One of Landis’ attorneys, Amy Potter of the Angeli Law Group of Portland, said at the hearing that the agent believed he slowed enough to make it through the intersection safely.
But prosecutors said at the hearing that DEA policy requires that agents prioritize public safety over enforcement actions.
Landis’ attorneys also said at the hearing that they would seek to dismiss the criminal case altogether. Prosecutors and Landis have a Jan. 26 deadline to file any motions, according to federal court records.
That likely will be put on hold as the appeal is considered.
Allen was on her way home from her state job, cycling downhill on High Street just before rush hour when the collision occurred.
Salem police reported at the time that Landis drove into the intersection and crossed the cyclist’s path.
Video obtained by Salem Reporter showed that the driver sped down Leslie Street, drove past a stop sign without stopping and into the intersection at High Street where the crash occurred.
The Salem agency announced three days after the cyclist’s death that it was transferring its investigation of the collision to the Keizer Police Department because it was partners in the task force with the DEA.
This story was updated after the Justice Department provided additional information.
Contact reporter Ardeshir Tabrizian: [email protected] or 503-929-3053.
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Ardeshir Tabrizian has covered criminal justice and housing for Salem Reporter since September 2021. As an Oregon native, his award-winning watchdog journalism has traversed the state. He has done reporting for The Oregonian, Eugene Weekly and Malheur Enterprise.