The Increasingly Narrow Path To Prosecuting An ICE Officer

State and local prosecutors in Minnesota investigating the fatal shooting of Renee Good are facing an uphill battle.

On Thursday, the FBI abruptly announced that it would not share evidence it gathered involving Good’s Jan. 7 killing by an ICE officer with the Minnesota Bureau of Criminal Apprehension, the state agency.

At first, the Minnesota Bureau of Criminal Apprehension and the FBI were working “jointly” on the probe. But after the FBI closed ranks, Hennepin County Attorney Mary Moriarty didn’t mince words about the impact.

With the FBI making itself the “sole investigative agency,” she said in a statement earlier this week, “the State will not receive the investigative findings and our community may never learn about its contents.”

It spells trouble for any path to either answers or accountability in Good’s death, up to and including the potential of prosecution if authorities believe a crime has been committed. To prosecute a crime — any crime — an investigation must be opened first: This probing allows for evidence to be combed through and for prosecutors to decide whether criminal charges should be filed at all.

At a press conference on Friday, Moriarity said “we don’t know whether, without the FBI case file, we can even make a charging decision,” she added.

States have the right to prosecute federal officials when they violate state criminal laws. In the 1906 Supreme Court case Drury v. Lewis, the justices ruled that where federal officers are, in fact, found to be operating outside the law or using unauthorized force, they are absolutely eligible for prosecution.

Whether those efforts succeed, or whether a federal official even goes to trial, depends keenly on the issue of immunity, according to Bryna Godar, staff attorney for State Democracy Research Initiative at the University of Wisconsin Law School, speaking on a press call on Thursday.

“In these cases, you’re not just analyzing the facts of the case and how to charge before a jury, you’re potentially having to deal with whether the officer is immune,” Godar said. And that is not at all simple.

There have always been “periods of friction” between the state and federal government when it comes to prosecuting federal officers or agents, Godar said.

Under the Constitution’s supremacy clause, federal officers can be considered immune from prosecution for actions they take in the course of their duties, but it isn’t guaranteed.

Whether a federal agent can successfully invoke immunity in court hinges on whether that officer is deemed by a judge to be acting in a way authorized by federal law; and if the agent was taking actions considered necessary, reasonable and proper to fulfill their federal duties. But conducting immunity analysis can take a very, very long time.

Investigators and prosecutors must analyze all facts of a case, and that includes close examination of each and every act of the accused officer and all parties involved. Then it must be decided which of those actions do or do not fit into the criteria.

Take the legal battle over the 1992 Ruby Ridge standoff as an example, Godar said.

“Key facts were in dispute,” Godar said, tied to whether deadly force used in the shootout was actually reasonable.

After an FBI sniper shot and killed an unarmed woman as part of a siege on a cabin near Ruby Ridge, Idaho, federal and state investigations ensued. Bill Barr, then the U.S. attorney general, decided not to pursue federal criminal charges against the FBI agent. An Idaho prosecutor, however, brought state charges for involuntary manslaughter. The government then went to the Ninth Circuit Court of Appeals and demanded the case be stopped before it could go any further.

But the government lost. The case was dropped over 20 years later after a successive state prosecutor felt the state didn’t have enough evidence to secure a conviction and that too much time had passed.

Often, federal officers facing off with state or county prosecutors will seek to move their case from a state court to a federal one, Godar said. They argue that because they are federal officers, their case should be heard in federal court.

That request is usually granted if the agent can successfully raise something known as a “plausible federal defense,” essentially a claim that their actions were part of their official duties, for their conduct. In the case of the ICE officer who shot Good, Godar said she expects that if he is charged, that is exactly what he will attempt to do.

State and federal authorities are already deeply at odds about the basic facts of the incident. With President Donald Trump and his administration smearing Good publicly and claiming without evidence that she was a “domestic terrorist,” it is already clear the federal government will argue everything the ICE officer did was protected or in “self-defense.”

But even if a federal venue is allowed, there’s a wrinkle worth noting, she said.

“The charges would still be for a state law crime, and if it ultimately leads to conviction, that means the president wouldn’t be able to pardon that conviction. The president can only pardon convictions for federal crimes, not state crimes, and the fact that this would be playing out in federal court wouldn’t automatically convert it into a federal criminal conviction,” Godar said.

Karianne Jones, the senior legal strategist for Evergreen Legal — as well as a Minneapolis resident, former White House Office of Management and Budget staffer and the co-founder of Democracy Forward — said that “in a normal world,” the expectation would be that the federal government would open a probe and seek to hold those involved accountable.

“But we’re not in a normal world. We are in a world where the federal government is obfuscating, lying, obstructing investigations and generally encouraging the same kinds of behaviors that have led to these dangerous and tragic situations. That’s why it’s vital in this circumstance that state and local governments use all of their authorities to the full effects, to the fullest extent they can,” she said on the press call.

Right now, Moriarty said the FBI has taken possession of key evidence, including Good’s car. They also took shell casings from the scene and are holding on to records of officer interviews.

“If state investigators are not able to obtain the same information they would have if they were involved, if the investigation isn’t conducted as thoroughly, if the FBI doesn’t share that information with state prosecutors, that will practically and significantly hamper state and local authorities’ ability to bring a case,” Godar said.

When Minnesota Attorney General Keith Ellison was asked Friday why the Trump administration jumped to commandeer the probe, he was at a loss.

“I can’t speak to why the Trump administration is doing what it’s doing,” he said.

Carolyn Shapiro, a professor at Chicago-Kent College of Law and the former solicitor general of Illinois, added that it may be “premature as a practical matter” to say the FBI will entirely shut out investigators for the state or Hennepin County.

So far, however, there’s little indication that Trump administration officials or the FBI intend to be cooperative.

Should they wish to, and especially if the path to criminal prosecution is closed, Good’s family may be able to seek some form of justice in civil court.

They could sue under the Federal Tort Claims Act for monetary damages, for example. Good’s estate could fight to dub the federal agent’s activity as “rogue” and, at minimum, maybe even win a ruling simply declaring the mother of three’s constitutional rights were violated.

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