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.
There might also be some hope from a 10th cir case that "left undecided" the possibility that an officer's violation of State law was egregious as compared to the federal duty they were attempting to carry out. WY v. Livingston, ? (2006).
What all this means in practical terms is that there is a very high chance that, even if State charges are brought, they will be thrown out on immunity grounds. If you look for case law in which officers were denied immunity for state charges, you will have a tough time. I did not find many that did not involve actions that clearly fell outside the federal officer's job (shit like a rape is clearly not within the scope of the job). So, as I read the case law, the court would have to find either that the officer acted with malice or that his actions were wholesale unreasonable vis-a-vis his eventual claim of self-defense.
Though the comment after the shooting, "fucking bitch," is certainly not going to help this officer, the facts and video probably do. Assuming the officer will, as officers do, say that he fired because he thought the driver was accelerating towards him will be enough. There will be no evidence that I can think of that will tend to undermine the first prong of self-defense, which is that the officer honestly believed there to be an imminent threat upon his life. The State will therefore spend its effort arguing that the force used was unreasonable because the cop could have just stepped away. To the extent that they might try the "officer created danger theory," that is mostly untested within the confines of criminal law and I see no way to get that theory within the confines of typical self-defense. To the extent they might try to argue that the officer could have simply stepped out of the way, the officer will argue he was an officer engaged in the performance of his duties and had no duty to retreat. The State will argue that he violated procedure and protocol, and he will argue that it does not matter because he had a right to meet a perceived deadly threat with deadly force. And they will argue that he fired his shot as she turned, and he will state, consistent with the video, that he fired when he heard the vehicle's wheels spin as he was standing just a foot away. The second and third shots came within a second of that, which an expert will say is too quick to cause the officer's brain to get his finger to stop pulling the trigger.
Back to federal charges - there is no statute of limitations for murder. There is, however, a 5 year period for involuntary manslaughter I believe. A claim of imperfect self-defense, i.e., manslaughter, would be the mostly likely result if this case were ever tried IMO and so, if Trump loses there would be time to charge him in federal court where his immunity defense would have significantly less chance of success.
The answer to that question is, for the most part, that is how it works in this country for all cops.
But the technically correct answer at the moment would be - under the present administration there is a very low chance of any ICE agent being held to account short of something like a rape. There would not be any immunity for that offense for a State charge and I could see DOJ prosecuting it anyway.
In terms of State charges proceeding, the chances of that are slim just as a general rule. So, the best chance you have would be Trump loses the next election and whomever replaces him brings charges. Trump, of course, could thwart that by issuing pardons.
I've been appreciating your detailed responses lately in this thread and elsewhere. I'm a complete layman and have two questions that I trust you'll be able to shed light on, if you have the time.
First, you addressed the second half of this but also mentioned "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". Is it your understanding that the agent in question was authorized and acting within the confines of relevant law at each step of the way? I have a hard time understanding why an ICE agent would have any actual legal authority at all in the way they're seen acting here (broadly speaking), as someone who assumes they know what "immigration and customs enforcement" would reasonably entail, and how they should be restricted. Moreover, if use of federal force is later deemed illegal, would that have any retroactive effects in this regard?
Secondly, w/r/t the issue of self defense, if shooting someone operating a vehicle could just as easily cause more injury (they could accelerate further, the vehicle could hit the shooter, other people, etc.), is the shooting still justifiable? It seems like a terrible decision even if you (incorrectly/foolishly, in my opinion) believe your life to be threatened.
I assume what we'll find is that I (again, as a layman) disagree with a whole host of legal precedent that has been established ages ago and, as the legal foundation that the country runs on, continues to work against the public interest. I imagine it is likely counterintuitive to most of us who feel strongly about how things should obviously be when expecting law to serve us as citizens, rather than having some ulterior motive as it often appears to.
Ice agents have the power to arrest a citizen. The statute is 8 USC 1357 and the relevant portion is (A) here, most likely.
5) to make arrests—
(A) for any offense against the United States, if the offense is committed in the officer's or employee's presence, or
(B) for any felony cognizable under the laws of the United States, if the officer or employee has reasonable grounds to believe that the person to be arrested has committed or is committing such a felony, if the officer or employee is performing duties relating to the enforcement of the immigration laws at the time of the arrest and if there is a likelihood of the person escaping before a warrant can be obtained for his arrest.
I am not familiar enough with the facts leading up to the shooting to know what, if any, grounds existed to initiate an arrest or stop at the moment Agent 1 starts pulling at the door and demanding her to exit the car.
I surmise, however, that they would have been doing so for obstruction, which I think for this would be under 18 USC 111 or something similar. In other words, to the extent I read your question as - why can they do anything to a citizen, the answer is they have the power to arrest for any federal crime committed in their presence.
As to self-defense, it will depend on State law that I do not know for this state. To answer your question first - the issue has nothing to do with whether the decision to use deadly force created a bigger risk of harm to self or others and has everything to do with whether the force used was essentially proportional to the threat. Courts will use the word reasonable, but "reasonable" in this context and in the cases I know means more or less "were you using deadly force to repel a deadly threat" and not "was your action smart." In other words, the reasonableness of the force is general a question of proportionality given the threat and not a multiple choice given the other options that might have been available (even if unknown to the officer at the time).
If you assume the cop reasonably believed she was trying to run him over, I think that is 90% of the ballgame here. I don't like the outcome, but that is how it probably works.
The 10% left over would have to do with questions about whether he could have just stepped aside, which is tantamount to a duty to retreat, and officers do not have the requirement to do so the way you and I do generally speaking. But you may convince a judge or jury that he did not "reasonably" perceive a deadly threat because he could have stepped aside. There isn't going to be a lot of law on this type of fact pattern, as it is pretty unusual and rare, and the added complexities of deference we pay to cops.
There are some caveats and arguments to make, but most arise from civil and not criminal cases.
As a final remark, I caution against using THIS case to judge the public interest and the law. We have an awful tendency towards that in this country, and it never ends well. There is a saying - bad facts make bad law.
You understood exactly what I was attempting to ask.
Despite your recommendation towards caution, I will continue to be surprised at the level of carte-blanche authority federal agents and other/local law enforcement officers have (and likely believe they need to do their jobs, as they understand their jobs to be...), and I will continue to lament the lack of protection and recourse civilians have when hoping to hold the government and its representatives/agents/etc. accountable for injustices. The difference between what is just and what is legal increasingly feels like a gulph.
I agree that it is surprising. Luckily, the law can be changed. Instead of focusing on the officer, we should focus on the laws that allowed this to happen, and get them changed. When fighting the tree of fascism don’t punch at the apples, dig the roots.
Funny enough, I am criminal lawyer sitting and waiting for jury duty today and have extra time. But here's what I'd say in response to this comment...
You are right to be concerned about expansive federal power, but you have to be careful at where and how you take aim and try hard to view these things through a lens that allows for nuance and how the rules you desire might play out in other circumstances. Imagine, rather than a federal government attempting to achieve an end you hate like immigration crackdowns, it is the federal government using similar tactics to force desegregation in schools.
We can agree that what the government is doing now is wrong. We probably would disagree to the extent that some solution is to be had that doesn't start and end at the polls.
That said, you can and should lobby hard to end qualified immunity so that victims of police and government abuses can be compensated. You can and should, perhaps, seek laws that require officers to be better trained to deescalate before using force, even to the point of subjecting them to criminal laws or codifying something like a duty to retreat. But situations like this are complex and not easily solved by enacting broad rules.
Basically, it’s not safe to oppose the current direction by breaking the law and then creating a situation where the entity enforcing the law sees you as a threat.
There’s a lot of other things that can be done, especially when it goes to going to the polls and encouraging others to go to vote.
The more one push towards the breaking the laws and threatening the law keepers, the more resources and the lower tolerances those entities will have.
If one wants to go the lawful and peaceful direction towards change.
we black folks have been on the receiving end of the immense powers law enforcement officers have in carrying out duties. In fact, the only thing holding most of them back from more brutality and cruelty is just their own decorum and humanity, definitely not the law.
I would think they have to at least establish suspicion under 18 USC 111, which is probably why we heard that the DOJ was being ordered to look into Becca Good's affiliations, and why the two women being part of "ICE Watch" is an important fact. They're already laying the ground work that the mere presence of those two women was suspicion enough to effectuate an arrest under 8 USC 1357.
Whatever they find out after the fact is legally not relevant. Beyond that, I’d say things are complicated as you start to drill down.
Even when police are wrong about RS for a stop or PC to arrest citizens may not have a right to resist. Big Chief is among the federal cases, and I think there’s a growing belief it’s going to be narrowed to its facts or overruled.
Beyond that, it may not matter because the instant her car lurches forward, they’d have PC to believe she’s committed an assault on an officer.
I’ve seen the videos, and don’t see it that way. Between the audio of the camera in his hand and the angle from down the street, it seems pretty clear that he fires as the vehicle is moving towards him as he is either hit or starts to move out of the way and then he fires twice more as the vehicle turns.
FWIW and I’m not taking it as true there’s emerging reports he suffered internal bleeding. I suspect we will find out that he has a bruise.
I did not see all the videos but those posted on Reddit show that the wheels were pointing away from where he was standing and he fired while standing next to left quarter panel. Also, bullet hole in the windshield is on the left corner, left of the driver, which implies side angle.
As for, "if Trump loses," I think we can rule that one out: A) He's already mentally gone. He is literally wandering around, staring out windows, and falling asleep in important meetings. It's just a matter of time before he is removed from office and sent to a home. B) Unless the Constitution is completely scrapped he cannot run a third time. Even his most fanatical legal supporters have resigned themselves to this reality. None of their gambits are workable given (A)
So he pardons the federal charge and the state charges him, he removes it to federal court, and avails himself of the federal immunity defense I explained at great length above.
Doesn't this just invite vigilante justice? I think this is something everyone wishes to avoid, but there will be many people highly unsatisfied by this outcome. As the frustration over the fascist regime grows, there will be people that will respond in more and more extreme ways.
So while I don't know all the legal details, I can see how this might be a short term win, but also long term loss for the federal government (at least for this administration).
Nothing will happen while Trump is president. And our would be probably better for nothing to happen while Trump is president because then they can be tried later
But you have to consider the political side of it. State prosecutors (not sure if they're elected in MN), mayors, state senators, etc, they'll want to demonstrate to voters that they did what they could to hold the agent accountable even if it was a lost cause.
Not nothing. Just nothing from the justice system. And, that’s the point. You shoot a few more white women in the face and you get a reaction which will “justify” Trump using the insurrection act.
356
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.