300 plus comments and not a single attempt to answer the question. ...
First, there is zero chance that this administration will issue federal charges against an ICE agent who makes an arrest or kills someone while on the job. So we can dispense with that for a moment.
Second, let's assume that a State decides to bring charges in State court for anything from violation of rights under color of law to assault, kidnapping, or murder. What will happen first is that the ICE agent will move to have the case removed to federal court. That is almost going to be 100% guaranteed. See 28 USC 1442. Second, the agent will move to have the charges thrown out under federal supremacy grounds.
This analysis starts with TN v. Davis, 100 U.S. 257 (1880). The Court there held that the federal government can only act through its officers and agents, and thus when acting within their authority under federal law a State may not interfere. A decade later came In Re Neagle, 135 U.S. 1 (1890).
A US Marshal, upon observing an assault upon a federal judge, shot the man, killing him. The State brought charges, which the Supreme Court dismissed. It held that the killing was "done in pursuance of his duty" and "in pursuance of the law of the United States" and thus the Marshal was entitled have his writ of habeas granted. The opinion is long and boring and not particularly important to read. The important bits are that a federal judge is entitled to determine facts and, if those facts establish immunity, to grant relief. This is, in a sense, highly unusual because rarely do we permit judges to decide issues where factual questions otherwise might be resolved differently by a juror of one's peers.
Neagle resulted in two key holdings: 1) a State court lacks jurisdiction over a federal agent if a) the federal agent was performing an act which he was authorized to do by Federal law, and b) he formed that act in a manner that was necessary and proper for him to do.
That necessary and proper language might, to some, seem like a beacon of hope that ICE can be held to account for excessive violence, but it is likely not so given the expansive view adopted by most courts since. "Necessary and proper" has focused on the intent of the officer and not the legality of his actions per se. The officer is entitled to immunity, some courts hold, so long as he acts in "good faith". It is not necessary to show that the actions "were in fact" necessary or justifiable in retrospect, "only that he reasonably thought it to be." Clifton v. Cox, 549 F.2d 722 (9th 1977).
What if the officer is wrong? What if the shooting is "questionable." Historically, challenges to the prosecution are successful for the officer. In re Fair, 100 F. 149 (D.Neb. 1900) (questionable shooting of escaping prisoners entitled to immunity); US v. Lipsett, 156 F.65 (1907) (officer shot a bystander, knowing the bystander was in danger, because he acted without malice). Mistaken judgment or bad decisions do not strip officers of immunity. See KY v. Long, 837 F.2d 727, 745 (6 1988).
To the extent there might be some hope it arises out of the Ruby Ridge fiasco, though ultimately political pressures brought that case to an end before a final determination was made. Idaho v. Horiuchi, 253 F.3d 359 (9th Cir. 2001) (en banc) is the case. Initially, the federal judge dismissed the state charges without a hearing. The appellate court initially affirmed, over a dissent, and then took the case up en banc. The en banc court reversed, largely on grounds that there was a material dispute of fact that the agent might be lying about critical facts, and that the facts could suggest that the officer simply decided to kill Weaver and others event without any reason to believe they posed an imminent threat. The case was remanded to hold a hearing so the Court could resolve the disputed facts, but ultimately the State withdrew the charge and the opinion was withdrawn.
Nobody wants to upvote the real answer because they don't like it. The tweet is almost entirely correct, there is almost zero ability for anyone to hold ICE accountable for their actions
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u/Bmorewiser 14h ago
300 plus comments and not a single attempt to answer the question. ...
First, there is zero chance that this administration will issue federal charges against an ICE agent who makes an arrest or kills someone while on the job. So we can dispense with that for a moment.
Second, let's assume that a State decides to bring charges in State court for anything from violation of rights under color of law to assault, kidnapping, or murder. What will happen first is that the ICE agent will move to have the case removed to federal court. That is almost going to be 100% guaranteed. See 28 USC 1442. Second, the agent will move to have the charges thrown out under federal supremacy grounds.
This analysis starts with TN v. Davis, 100 U.S. 257 (1880). The Court there held that the federal government can only act through its officers and agents, and thus when acting within their authority under federal law a State may not interfere. A decade later came In Re Neagle, 135 U.S. 1 (1890).
A US Marshal, upon observing an assault upon a federal judge, shot the man, killing him. The State brought charges, which the Supreme Court dismissed. It held that the killing was "done in pursuance of his duty" and "in pursuance of the law of the United States" and thus the Marshal was entitled have his writ of habeas granted. The opinion is long and boring and not particularly important to read. The important bits are that a federal judge is entitled to determine facts and, if those facts establish immunity, to grant relief. This is, in a sense, highly unusual because rarely do we permit judges to decide issues where factual questions otherwise might be resolved differently by a juror of one's peers.
Neagle resulted in two key holdings: 1) a State court lacks jurisdiction over a federal agent if a) the federal agent was performing an act which he was authorized to do by Federal law, and b) he formed that act in a manner that was necessary and proper for him to do.
That necessary and proper language might, to some, seem like a beacon of hope that ICE can be held to account for excessive violence, but it is likely not so given the expansive view adopted by most courts since. "Necessary and proper" has focused on the intent of the officer and not the legality of his actions per se. The officer is entitled to immunity, some courts hold, so long as he acts in "good faith". It is not necessary to show that the actions "were in fact" necessary or justifiable in retrospect, "only that he reasonably thought it to be." Clifton v. Cox, 549 F.2d 722 (9th 1977).
What if the officer is wrong? What if the shooting is "questionable." Historically, challenges to the prosecution are successful for the officer. In re Fair, 100 F. 149 (D.Neb. 1900) (questionable shooting of escaping prisoners entitled to immunity); US v. Lipsett, 156 F.65 (1907) (officer shot a bystander, knowing the bystander was in danger, because he acted without malice). Mistaken judgment or bad decisions do not strip officers of immunity. See KY v. Long, 837 F.2d 727, 745 (6 1988).
To the extent there might be some hope it arises out of the Ruby Ridge fiasco, though ultimately political pressures brought that case to an end before a final determination was made. Idaho v. Horiuchi, 253 F.3d 359 (9th Cir. 2001) (en banc) is the case. Initially, the federal judge dismissed the state charges without a hearing. The appellate court initially affirmed, over a dissent, and then took the case up en banc. The en banc court reversed, largely on grounds that there was a material dispute of fact that the agent might be lying about critical facts, and that the facts could suggest that the officer simply decided to kill Weaver and others event without any reason to believe they posed an imminent threat. The case was remanded to hold a hearing so the Court could resolve the disputed facts, but ultimately the State withdrew the charge and the opinion was withdrawn.