         Applicability of the California Penal Code to
      Investigations Conducted by the Federal Bureau of
                          Investigation

A federal law enforcement officer who must violate state criminal law in the course of
  performing his official- duty is immune from criminal prosecution and civil liability
 stemming from such a violation.
An informer may claim immunity from civil liability under state law by virtue of the
 Supremacy Clause, and it would be unwise to base an informer's defense on sovereign
 immunity, given the potential for government liability if the informer’s actions were to
 be characterized as those o f a government employee.

                                                                       November 5, 1981
MEMORANDUM OPINION FOR THE ASSISTANT ATTORNEY
         GENERAL, CRIMINAL DIVISION

   This responds briefly to your request for the views of this Office on
your proposed response to the Federal Bureau of Investigation’s (FBI’s)
request for the Department’s views on the applicability of the Califor­
nia Penal Code to investigations conducted by the FBI involving elec­
tronic monitoring and recording of a confidential communication with
the consent of one party to the conversation. FBI Legal Counsel has
raised the question whether criminal or civil liability could be imposed
on agents, informers, or cooperating third parties for invasion of pri­
vacy under §§ 630-637.2 of the California Penal Code. We concur in
your conclusion that no federal officer, or cooperating party under his
or her direction,1 acting in compliance with applicable federal law on
electronic monitoring and recording, could be held liable under state
law.
   California penal law prohibits wiretapping and prohibits electronic
recording of conversations where it reasonably appears that any party
intended the communication to be confined to the parties. See Cal.
Penal Code §§ 631, 632 (West 1970 and Supp. 1981). The state courts
have apparently uniformly construed the penal code to prohibit one
party to a confidential communication from recording that conversation
without the knowledge or consent of the other party. See, e.g.. Forest E.
Olson, Inc. v. Superior Court, 63 Cal. App. 3d 188, 133 Cal. Rptr. 573

   1 We include both informers and third parties cooperating for the purpose o f the monitoring or
recording

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(1976). A civil remedy and minimum damages award of $3,000 are also
provided for violations of these prohibitions, see Cal. Penal Code
§ 637.2 (West 1970).
   Section 633 provides an exemption for certain state law enforcement
officers and persons acting pursuant to their direction. In an opinion of
the California Attorney General, in the context of other state law
enforcement officers, this exemption was construed to be limited to the
officers specifically identified. 55 Op. Cal. Att’y Gen. 151 (1972). The
FBI questioned, therefore, whether the exemption, which does not
expressly include federal officers, would be unavailable to federal offi­
cers or cooperating parties, who might then be held criminally or
civilly liable.
   You have responded that, in addition to the legislative history of
Title III of the Omnibus Crime Control and Safe Streets Act of 1968,
18 U.S.C. §§ 2510-2518, the case law indicates that a federal investiga­
tor would be immune from state criminal prosecution in consensual
monitoring situations notwithstanding the more restrictive requirements
of California law. We agree. This Office has repeatedly maintained that
federal law enforcement officers who must violate state criminal law in
the course of performance of their official duties could maintain a
defense based upon the supremacy of a proper federal law enforcement
function. In re Neagle, 135 U.S. 1, 75 (1890); Clifton v. Cox, 549 F.2d
722 (9th Cir. 1977). When the federal law enforcement operation re­
quires the use of an informer or other cooperating party, our opinions
have treated this party as sharing in the officer’s immunity.
   With regard to civil liability imposed under California law for viola­
tion of the penal code, you have also concluded that the federal officer
or a person acting under his or her direction would not be personally
liable. Again, we agree that the officer would be immune. In addition
to the same defense based on the Supremacy Clause,2 a federal official
is shielded by sovereign immunity when sued for civil damages for
actions committed “within the outer perimeter of [the official’s] line of
duty.” Barr v. Matteo, 360 U.S. 564, 575 (1959); cf. Clifton v. Cox, 549
F.2d at 726-28. The officer’s compliance with federal wiretapping law
would meet this standard.
   The immunity of the cooperating party in a civil action presents an
additional consideration. Your memorandum concludes that the cooper­
ating party wouid in all likelihood be found to be a “government
agent” immune from criminal prosecution and that similar reasoning
would seem to exempt him or her from civil liabililty under the Barr-
Clifton line of cases. It is true, as your memorandum points out, that
informers have been treated as government agents for purposes of
certain constitutional principles limiting government action, see, e.g.,

   2 T he Supremacy Clause defense is not limited to the criminal context. Our prior opinions have
recognized that the defense would be available, for example, in a state bar disciplinary proceeding.

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Hoffa v. United States, 385 U.S. 293, 307 (1966); United States v. Celia,
568 F.2d 1266, 1282 (9th Cir. 1977), United States v. Upton, 502 F.
Supp. 1193, 1196 n.l (D.N.H. 1980). But to assert that, in addition the
immunity from liability under state civil law granted by virtue of the
Supremacy Clause, the informer is clothed with the government’s own
immunity from civil damages, might raise the question whether the
government itself would be liable for the actions of informers in cir­
cumstances where the government has waived its sovereign immunity
to suit under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671—
2680, for the actions of its officers and employees.
   This Office has thus far resisted the conclusion that informers are
government employees within the meaning of the FTCA. The Ninth
Circuit, at least, has recently agreed. Slagle v. United States, 612 F.2d
1157, 1159-61 (9th Cir. 1980). At least where the same assurance of
immunity can be provided to the cooperating party on Supremacy
Clause grounds, we see no reason to raise the defense of sovereign
immunity, given the potential for government liability for the informer’s
actions, if not on these facts, then on others, if the informer were to be
characterized as an employee.
   The FBI has also requested advice on the procedure that the Depart­
ment would follow if an agent or cooperating party were named as a
defendant in a state criminal prosecution or civil action. As your memo­
randum notes, the defense to a criminal prosecution could be asserted
upon removal of the prosecution to federal court, see 28 U.S.C.
§ 1442(a)(1), or by application to a federal court for pretrial habeas
corpus relief, see 28 U.S.C. § 2241(c)(2). The civil action could also be
removed to federal court. 28 U.S.C. § 1442(a)(1). We note additionally
that neither removal nor habeas corpus relief in cases involving cooper­
ating parties would be dependent on the party’s status as an employee.
Removal, for example, is available to persons “acting under” an officer
of the United States; habeas corpus relief may be granted to persons “in
custody for an act done or omitted in pursuance of an Act of Con­
gress.” Thus procedurally as well as substantively the defense of sover­
eign immunity adds nothing to the full protection afforded to cooperat­
ing parties by the Supremacy Clause. With this slight reservation with
respect to the reasoning of your memorandum, we concur.
                                        T h e o d o r e B. O l so n
                                      Assistant Attorney General
                                       Office o f Legal Counsel




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