Federal agents often immune from prosecution. This Austin shooting tested the law

AUSTIN (KXAN) – Security cameras rolled on the parking lot of a bank in Central Austin, as a confrontation between two men turned into a chase. Another camera angle caught both men racing down the street before disappearing out of frame.

A few blocks away, there were no cameras to capture the moment the men struggled or the sound of the gunshots.

In the hours that followed, investigators swarmed the scene and began to piece together what led to the deadly shooting. As a new prosecutor with the Travis County District Attorney’s Critical Incident unit, Ken Ervin remembers overseeing the investigation that day in 2013.

“The tension on this scene was different,” he recalled. “There very well could have been a crime.”

Earlier in the day, Austin Police Detective Charles Kleinert had come to the bank to investigate a robbery. While he was there, a man named Larry Jackson Jr. tried to enter the bank, and according to accounts of the incident, gave bank employees a different customer’s name. The detective stepped outside to speak with Jackson, who, after a few minutes, ran.

Court records detail how Kleinert commandeered a bystander’s car to catch up. When he met up with Jackson near the hike-and-bike trail along Shoal Creek, those court records say Kleinert hit the man several times with the same fist in which he was holding his gun.

Jackson ultimately died from a single gunshot wound to the back of the neck. According to the records, Kleinert said he did not intend for his gun to go off.

Ervin and his team brought the case before a grand jury, as was the district attorney's office policy for all officer-involved shootings. Jackson’s family as well as a group of protestors gathered outside the courthouse, demanding justice, as the jury inside ultimately opted to indict Kleinert for manslaughter — meaning the district attorney would begin building a case for trial.

However, after the indictment, Ervin got notice of a strange filing from Kleinert’s defense team, which was trying to move the case to federal court.

“I got a call from the elected district attorney asking, 'Can they do this? And I said, ‘No. To my knowledge, this — no, this can't happen. This is a state crime being prosecuted in state court.’ Came to find out … I was wrong,” Ervin said.

The rest of the case played out in federal court, before being dismissed in fall 2015.

According to a new analysis by NBC News, only a handful of local prosecutors over the last three decades have tried to convict federal agents or federal task force members of murder or manslaughter after fatal shootings. The case against Kleinert — who, notably, also served on a federal task force — is one of these rare cases.  

To date, no local prosecutor has secured a conviction, according to NBC’s review of cases on Thomson Reuters Westlaw.

Looking back, Ervin said, “It did seem much more like an uphill battle.”  

‘The best practices’

Across the country, the Department of Justice oversees work by more than 24,000 federal agents with the FBI, ATF, DEA and U.S. Marshals Service. NBC News reports their ranks swell to at least 40,000, if the count includes state and local officers who work on federal task forces or partnerships.

While there’s been a public push for more transparency and accountability for local police departments in recent years — especially in use-of-force cases — the same scrutiny is not always apparent in incidents involving these federal agencies.

NBC News documented 223 people were shot by federal agents or task force officers from 2018 to 2022, but it noted that many of the shootings got little to no public attention when they happened. Using thousands of public records, news reports, press releases and lawsuits, NBC News built a database of these incidents and uploaded them into a public archive.

Texas tops the list of states with the most number of cases, with at least 17 shooting incidents over that five-year period.

In one shooting in San Antonio in 2019, involving the Lone Star Fugitive Task Force, NBC had to rely on local media reports for further details about the incident -- including the fact that it remains unclear whether the suspect was killed by a self-inflicted gunshot wound or by law enforcement.

In another San Antonio case, a man was killed in the driveway of his home. Law enforcement claims officers fired after the man rammed their police vehicles with a truck, but local media reporting recently revealed contradictory events.

The DOJ recently updated its use-of-force policy for the first time in nearly two decades, which now limits the use of certain controversial tactics and requires its agents to intervene when they witness excessive force. Peter Carr, a department spokesperson, told NBC News in a statement that update was to "ensure it parallels the best practices of federal, state and local law enforcement.”

“The Department of Justice recognizes the importance of transparency and accountability in its law enforcement operations," Carr said.

KXAN investigators reached out to the DOJ with additional questions. This article will be updated when more details become available.

It’s important to note, local prosecutors, grand juries or law enforcement agencies deemed the shootings in NBC’s review as justified 98% of the time.

For example, KXAN investigators took a closer look at the one case during that time period out of Central Texas — a shootout in San Marcos in 2020. The Hays County District Attorney said a grand jury declined to indict the law enforcement official involved. It also prosecuted the suspect who initiated the gunfire on law enforcement in this incident, and he is now serving two life sentences in prison.

The NBC News analysis noted just two shootings in that five-year time frame where criminal charges were filed against on-duty federal agents or task force officers. Looking back decades, these cases, including the one involving Kleinert, often get moved to federal court, where they are likely to be dismissed under long-standing legal precedents that protect federal police work.

‘Legal no man's land’

A part of the Constitution, known as the Supremacy Clause, establishes federal law as the “supreme law of the land,” trumping conflicting state law. The U.S. Supreme Court has since interpreted the clause to mean states shouldn’t interfere with the federal government’s police work.

The high court took up a case from 1889, where a deputy with the U.S. Marshals, David Neagle, had shot and killed a person who had been harassing a U.S. Supreme Court justice in California. Its eventual ruling noted state officials couldn’t jail Neagle for acting on his federal duty – essentially establishing immunity for federal agents, or task force officers acting in their federal capacity, from prosecution in state court.

“They have a defense to being prosecuted, if they're acting -- doing what they need to do. What’s necessary and proper,” Kleinert’s defense attorney Randy Leavitt explained.

He recalled an FBI agent was the first person to recommend getting Kleinert's case moved to federal court.

“I thought he was crazy,” Leavitt recalled. “I checked with a couple of other well-known, respected, board-certified criminal defense lawyers in town that I highly respect. Their reaction was the same as mine originally.”

However, Leavitt pushed forward, bolstered by the fact that in federal court, the parties can present their case to a judge in a pre-trial hearing, before presenting the case to a jury.

“So, the issue before Judge Yeakel was: ‘Was he doing what was necessary and proper?” Leavitt said. “It wasn't like this case got removed to federal court, and it got dismissed. We had a three- or four-day trial on that issue.”

Leavitt faced off with Ken Ervin in front of the legendary federal Judge Lee Yeakel, who retired in 2023 after serving on the bench in Austin for nearly 20 years.

When Yeakel sat down with KXAN investigators to discuss the case, he remembered being so surprised about the topic and the argument of Supremacy Clause immunity that he called his former law school professor at the University of Texas.

“He said, ‘Well, it never comes up. It's not worth our while to teach it because it never comes up.’ I said, 'Well, it came up my court,’” Yeakel recalled. “Very few judges have ever dealt with it. We treated it like we would every other case, and that is: determine what the facts are and determine what the law is.”

Yeakel ultimately agreed with the defense, dismissing the case under precedents such as the Neagle ruling.

He noted he found "no evidence Kleinert acted with any other motive than doing his federal duty to arrest Jackson.” His ruling also stated that "once those events began, regardless of the outcome, a court may not begin to second guess the actions of the officer.”

The Travis County district attorney’s team appealed the ruling up to the Supreme Court, which declined to hear the case.

“A grand jury has reviewed the evidence thoroughly and returned an indictment for something -- it seems that there should be an avenue to pursue that. But with that federal task force designation, it became almost impossible,” Ervin said. “He's in this legal no man's land where he -- there are some acts that seemingly he can't be prosecuted for.”

KXAN investigators asked Yeakel whether he felt there was enough of an avenue of accountability through the judicial system, given the implications of Supremacy Clause immunity and these federal legal precedents.

He said, “the third branch of government, the judicial branch, is the least political branch of government. Where the fences come -- whether there's enough protection, or not enough protection -- is pretty much up to the policymakers, the legislative branch and the executive branch.”

Yeakel went on to explain, “I see no reason why the Congress could not address the issue of immunity. However, if the Congress wanted to address the issue of immunity, then it would have to go to the Supreme Court again, and the Supreme Court would decide whether they did that within the bounds of the Constitution, or they didn't do it within the bounds of the Constitution.”

KXAN investigators reached out to the office of every member of the Texas Congressional delegation who also sits on the House or Senate Judiciary Committee, with questions on this topic. Those committees oversee the DOJ, as well as the DOJ’s federal law enforcement agencies.

Just Senator Ted Cruz responded with a statement, “No one does more to protect the lives of Americans than our law enforcement officers, yet, despite this indisputable fact, the left and the mainstream media have made it their mission to vilify and attack them mercilessly for years. I have been proud to defend all our law enforcement branches and the men and women who belong to them, and I will never cease to support and honor their life of service to the American people.”

‘Split-second decisions’

Ten years later, Ervin and Leavitt now share an office and often share cases -- with Ervin having left the D.A.’s office to work as a defense attorney. In recent years, he even made headlines defending local officers against criminal indictments.

Still, looking back on the Kleinert case, Ervin said he believes his team would have secured a conviction against the detective if the case had remained in state court.

Leavitt, on the other hand, believes the outcome would have been the same for his client, noting that there are other protections for officers, under state law, for actions taken while on the job.

“I don't believe that 12 jurors would ever have found -- once they heard all of the facts -- that the detective’s actions that afternoon, in regards to the actual trying to get the man under arrest that he had chased down, were unreasonable or reckless,” he said.

Despite only ever hearing this one such criminal case, Yeakel said he oversaw many civil use-of-force cases involving officers.

“Juries also understand the split-second decisions that somebody has to make,” he said. “I found that the juries in Austin listened very carefully to actually what occurred and whether it was reasonable under the circumstances.”

Investigative Photojournalist Richie Bowes, Graphic Artist Wendy Gonzalez, Director of Investigations & Innovation Josh Hinkle, Digital Special Projects Developer Robert Sims, Graphic Artist Christina Staggs and Digital Director Kate Winkle contributed to this report.