How Federalism Built the FBI, Sustained Local Police, and Left Out the States

https://scholarship.law.columbia.edu/cgi/viewcontent.cgi?article=3722&context=faculty_scholarship

As the divergent experiences with the Mann Act and the Volstead Act demonstrated, the failure or success—and the nature of success—of federal law enforcement ultimately depended on the cooperation of local, not state, actors who had access to information and supplied manpower. For the Mann Act, the nature of such cooperation shaped the federal docket. For the Volstead Act, the absence of cooperation was fatal. The Dyer Act, as this Part will show, gave the fledgling Bureau a steady stream of cases to pursue—and an extraordinary opportunity for capacity building. Part II.A explains how the Bureau’s work on the Dyer Act offered police and insurance companies a solution to the problem of gathering criminal information in the automotive age and what the Bureau received in exchange. Dyer Act cases soon became the foundation for the relationship of mutual exchange that developed between the Bureau and local police—a “collaborative federalism” that largely excluded state authorities. Part II.B then examines the parallel story of other information-sharing projects that the Bureau pursued, which further illustrates collaborative federalism in action. By fostering cooperative alliances with local partners with these projects, the Bureau was able to expand its capacity beyond its small size and to pursue the high-profile cases that the American public increasingly expected the federal government to solve. They also solidified the role of local police departments as indispensable federal interlocutors. A. Enforcing the Dyer Act 1. What locals needed Mass-produced cars appeared on Main Streets and interstate highways just as reforming police chiefs were beginning to coordinate their activities. As they quickly discovered, the decentralized organization of law enforcement was illsuited to pursue motorists who could flee a jurisdiction on a moment’s notice. City or county governments were reluctant to spend money enlarging their police departments to go hunting for criminals who might not fall entirely within their purview. It also did not make sense as long as the pursuit and prosecution of crime was largely a private responsibility. As a result, insurance companies were at the front lines of fighting auto theft. Their main strategy was to post reward notices within a certain geographic range, usually within a radius of 150 miles or so from the point of theft since early cars on bad roads could travel only so far.92 By 1912, a group of insurers decided to economize their efforts by forming the American Protective and Information Bureau (APIB), which circulated a single report for all the stolen vehicles they insured and served as an information clearinghouse.93 Then in 1918, APIB manager E. L. Rickards and Michael Doyle, director of the American Automobile Insurance Company in St. Louis, Missouri, came up with the idea of a national law criminalizing the transportation of stolen vehicles in interstate traffic, believing that “Federal level involvement” would make a difference in combating the problem.94 Conveniently, Doyle knew his congressman, Leonidas Dyer. The following year in 1919, Dyer introduced a bill “to punish the transportation of stolen motor vehicles in interstate or foreign commerce.” 95 The House’s discussion of the bill centered on the question: “How can a Federal law punish a man for stealing an automobile?” 96 After all, theft was a local matter and already criminalized under local laws. The IACP, unsure whether Congress had the power to criminalize auto theft, instead suggested that the solution might be for all states to enact a uniform law, a common solution to interstate problems during this period.97 But in the era of the Mann Act and National Prohibition—within three weeks of the House’s debate, Congress would pass the Volstead Act to enforce the Eighteenth Amendment—most national legislators were persuaded that the federal government had the authority to criminalize the transport of stolen cars across state lines.98 One congressman argued by analogy that “[i]f the transportation of a woman from one State to another, by means of an automobile, for prostitution, constitutes interstate commerce, then how can it be argued, with any show of color, that the driving of a stolen automobile from one State to another for profit is not interstate commerce?” 99 Several of his colleagues also pointed out that the “favorite place for such thefts is near a State line.” 100 Dyer maintained that auto thefts were “particularly” common in the “cities of the Middle West,” especially in his home state Missouri, and that “State laws upon the subject have been inadequate to meet the evil.” 101 Chief Justice Taft would repeat these arguments in 1924 to uphold the Dyer Act, writing that “[t]he quick passage of the machines”—as cars were often called then— “into another state helps to conceal the trail of the thieves, gets the stolen property into another police jurisdiction and facilitates the finding of a safer place in which to dispose of the booty at a good price. This is a gross misuse of interstate commerce.” 102 Dyer and Newton also argued that the new bill fell comfortably within interstate commerce in the more traditional sense by invoking the interests of the insurance industry. In the face of a high risk of loss, “almost every owner in the land [held] a larceny policy.” 103 But this was also why providing insurance against auto theft proved to be a losing business proposition. “One of the reasons why this legislation is needed so badly,” Dyer pointed out, was because “automobile theft insurance has advanced in the past year over 100 per cent on cars costing from $500 to $900.” 104 The economics of this situation especially affected ordinary citizens, for “cheaper cars are stolen,” making it “almost impossible for the owners of these cheaper cars to obtain at any rate automobile theft insurance.” 105 Given the recent precedents of the Mann Act and the Volstead Act, as well as the broad reach of auto theft on the material lives of many citizens, it took just one month for Dyer’s bill to become the National Motor Vehicle Theft Act, or the Dyer Act, on October 29, 1919. Congress, however, gave no thought to how the new law would be enforced. The closest that legislators came to such a discussion was when Representative Newton noted that with the new law, “the Federal grand jury is empowered to investigate such larcenies.” 106 Once the Dyer Act was passed, its enforcement appears to have been an open question. Two months after enactment, the Automobile Underwriters Detective Bureau wrote to the attorney general inquiring “how a peace officer should proceed in making an arrest and prosecuting under this Act.” 107 Another insurance man wrote to the DOJ, “desirous of being sworn in as a special agent . . . to serve without compensation for the purpose of running down . . . thieves who have been . . . transporting cars from one state to another.” 108 On the APIB’s part, its leaders were under the misapprehension that US Marshals were supposed to be pursuing Dyer Act cases, and so were dismayed at the “laxity” that “existed on the part of the Federal Authorities in the enforcement” of the new law.109 To make the most of their lobbying efforts, APIB manager Rickards and an official from the Chicago Crime Commission met with Bureau Chief William Burns and his assistant J. Edgar Hoover in 1921 “to discuss methods of closer co-operation between the Department of Justice Agents and the Association [and] more effectual enforcement of the National Motor Vehicle Theft Act.” 110 Out of that meeting came clarification of the roles of the various stakeholders in Dyer Act cases.111 For its part, the APIB would serve as “a clearing-house for information in connection with stolen automobiles” and provide expertise on investigatory methods.112 For instance, it published the “Reference Book” that catalogued all the factory numbers and “secret identification numbers” stamped on different car makes and models.113 The insurance cohort would also pass on reports of stolen vehicles from their claimholders to law enforcement. This role was to be shared with local police departments whose officers discovered potential Dyer Act violations during their routine patrols. For their part, the police did not hesitate to involve the feds. For one thing, prosecutions were much easier to bring under the Dyer Act than under state larceny laws, which required proof of intent “to permanently deprive the owner of his car” and, as a result, did not cover joyriding.114 Dyer Act violations were also easier to prove than accompanying state crimes like robbery, and local officials were more than happy to pass along any case involving a car that crossed a state border.115 But the Dyer Act’s main value lay in coordinating law enforcement efforts among jurisdictions, when police in one locality apprehended someone with a car stolen from another locality, or when police in a theft victim’s state needed help from the recovering state. As Hoover explained, even simple Dyer Act investigations generally required “interstate inquiries, which the Bureau makes through its various field offices.” 116 He continued: The state authorities would be extremely handicapped … by lack of investigative authority extending from one locality to another, by lack of funds requisite to subpoena witnesses from one locality to another, by the necessity of resorting to a complicated system of removal hearings, extradition writs and other legal necessities which it would be necessary to invoke and by what I feel sure would be a very positive disinclination on the part of various local authorities to incur the expense and trouble to properly enforce the Act where local individuals or individuals of local prominence were not involved.117 Given the challenges that Hoover described, the Bureau’s role in Dyer Act cases often amounted to “packaging” information across jurisdictions and then “gifting” the cases back to local authorities to prosecute. Hoover noted in 1929 that “in some instances we find that prosecution is instituted in State Courts under local Statutes, particularly where the case holds some local interest or where important witnesses are readily available without the State incurring a large expenditure.” 118 Regardless of whether the prosecution was ultimately brought in state or federal court, the Bureau’s involvement in auto theft cases presented a solution to local police departments’ coordination problem. Federal facilitation via the Dyer Act substituted for interstate information sharing and clunky extradition procedures.In 1935, a columnist close to Hoover described this “service” aspect of the Dyer Act in the following way: Before the passage of this act, the run of bureau cases was tied tightly to the business of the Federal Government: there was little opportunity to be of assistance to State and local law-enforcement agencies. The new law widened tremendously the scope of activities. True, if a man robbed a bank, that was not the bureau’s business since the robbery of even a national bank [] was not a Federal crime until less than two years ago. But if that robber stole a car during that holdup and crossed a State line, he then became a fugitive from Federal justice. … A Federal chase for a violator of the national vehicle theft act has often led to the solution of a local mystery. A motivating crime is found, the theft of the car being the act of the moment, impelled by something quite different—usually the desire to escape from some other law violation. The Federal agency therefore frequently becomes an assisting agency to the enforcement bodies of the Nation, later withdrawing from the case if the State charge is the more serious.120 In this account, the Bureau applied the new federal criminal laws in order to help, not to encroach, local domains. Even diligent police chiefs sometimes found themselves relying on the feds given the coordination challenges. At an IACP conference in 1927, Chief J. W. Higgins of Buffalo, New York, complained that “other cities are not co-operating with us to the extent we co-operate with them.” 121 Fortunately, the Bureau could step in to help. In time, local protocols instructing officers to reach out to the feds whenever they recovered an out-of-state stolen car became common.122 When, in 1927, a Martinsburg, West Virginia, constable found an abandoned car with Florida plates, he scribbled a note to the Justice Department,123 which got passed to Hoover, who, in turn, assured the assistant attorney general for the Criminal Division that the matter would receive the Bureau’s full attention.124 The constable appears to have found that car by himself, but Justice Department correspondence indicates that local recoveries were often spearheaded by insurance company representatives accompanied by local police, who then passed the case on to the feds.125 In fact, just about all Dyer Act cases came from local officials. And there were many; according to one insurance agent, out of the 10,505,660 cars in the country in 1921, 60,145 had been stolen, and 43,664 had been recovered.126 Far from intruding on local matters, Dyer Act cases amounted to the federal collection and packaging of information for the benefit of all concerned. Significantly, it was the feds, not the states, that were able to provide this service, and it was the feds, not the states, to whom local police departments were obliged. 2. What the Bureau got in return Auto theft cases made up a significant portion of the Bureau’s docket. For example, in 1922, Dyer Act prosecutions comprised 43.74 percent of the Bureau’s total convictions (see Table 1). That year, Chief Burns testified at a House appropriations hearing that the increasing number of Dyer Act cases reflected “a marked tendency on the part of State authorities to shift [] responsibility on[to] Federal authorities.” 127 The next Bureau chief, J. Edgar Hoover, embraced the tendency even more enthusiastically. After Burns’ resignation in 1924, the APIB’s annual report noted that it “received excellent co-operation from Mr. Wm. J. Burns, Former Director, but the present Director, Mr. J. E. Hoover, is more intensely interested in the enforcement of the National Motor Vehicle Theft Act and fully realizes the effect of automobile thievery on general crime conditions.” 128 By 1929, the 2,123 Dyer Act convictions constituted more than half of the 3,950 convictions the Bureau had “secured” (another 457 were under the Mann Act).129 After reading the Bureau’s annual report for 1937-1938, the celebrated newspaperman Damon Runyon remarked, “What interests us as much as anything else is the way those G-fellows go after automobile thieves. It wasn’t that the Bureau lacked other matters crying out for its investigative attention. As David Grann recounts in Killers of the Flower Moon, in the spring of 1923, when the Osage Tribal Council appealed to the Justice Department to investigate a growing spate of murders targeting its members, Chief Burns dispatched agents to pursue desultory inquiries largely at the tribe’s expense.133 Hoover, on becoming director, carried on the assignment, but with an inadequacy that Grann makes clear in sad detail. Not only was the investigation extremely complex and challenging, made no easier by local authorities who were complicit in the Osage murders, but it also risked alienating those very authorities—precisely the opposite of the Dyer Act cases that forged collaborative relationships. Hoover collaborated on auto theft cases not simply because locals sought federal help. He also understood the benefit to the Bureau. Its work on Dyer Act cases justified the agency’s existence. Testifying at a House appropriations hearing in 1926, Hoover mentioned having “just received” an annual report from the Theft Committee of the National Automobile Underwriters Conference, which highlighted how the most recent fine and recovery data “prove conclusively that the Department of Justice, Bureau of Investigation, is enforcing the national motor vehicle theft act and your committee firmly believes that this arm of the Government is serving the public 100 per cent.” [STOP HERE]

DMU Timestamp: February 26, 2025 22:37