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Within hours of reports that Immigration and Customs Enforcement agent Jonathan Ross had shot and killed 37-year-old Renee Good in Minneapolis, the Trump administration made its position clear: The agent’s actions were justified. Department of Homeland Security Secretary Kristi Noem said Ross fired in self-defense after Good “weaponized” her vehicle, before investigators had publicly released any evidence. On social media, President Donald Trump said Good had “viciously run over” an agent, a claim that was contradicted by a New York Times analysis of bystander video.
Local prosecutors took a more traditional and cautious approach, saying publicly that they couldn’t decide whether any crimes had occurred in the Jan. 7 shooting without evaluating the evidence. One complicating factor: They did not have access to it. Federal officials quickly took control of the scene and cut state investigators off from physical evidence and interviews, according to state officials. At a news conference, Noem said the incident was out of the state’s jurisdiction. That lack of investigatory cooperation led local prosecutors to ask the public to send in any information they might have about the shooting.
It’s not uncommon for law enforcement to seek the public’s help in completing investigations. Here, though, the plea for information wasn’t driven by what prosecutors didn’t know, but by what they feared they wouldn’t be allowed to know because other law enforcement agencies controlled the evidence.
“That is just beyond anything I’ve ever encountered or even heard of in American criminal prosecutions,” said Amy Sweasy, a law professor at the University of Minnesota. She’s a former assistant prosecutor in the District Attorney’s office in Hennepin County, which includes Minneapolis. Indeed, the decision to leave state investigators out of the loop was one of the cited reasons for the resignations of several top federal prosecutors in the state on Tuesday.
In most cases where federal and state law enforcement have interest in a case, those materials are shared through standard interagency agreements — but state officials say those channels have broken down, raising the prospect that those materials would remain unavailable to local prosecutors indefinitely.
Sweasy said that lack of access to evidence is the first in a series of daunting hurdles for local prosecutors if they wish to bring a criminal case against the agent — and if such a case ever reached a jury, it would make for a powerful defense in the officer’s favor. She said a defense attorney would likely argue that jurors couldn’t fairly convict when they knew investigators gathered evidence that the jury would never be allowed to see.
Additionally, long before a criminal case made it to a jury, prosecutors would likely have to overcome legally powerful immunity claims on behalf of the officer.
“Absolute immunity” is a specific legal concept that generally applies to judges and prosecutors, not federal agents in the field. But the Constitution gives federal law supremacy over state and local laws, and that means federal agents have immunity from state prosecution for official acts that are determined to be “necessary and proper.” That term comes from an 1890 Supreme Court case, In re Neagle, in which local prosecutors sought to charge a deputy federal marshal with murder after he killed a man while protecting a Supreme Court justice. Subsequent cases have built on this case law.
In a legal analysis for Reason, Michael Mannheimer, a law professor at Northern Kentucky University, argued that the protections under Neagle are narrower than many assume, and don’t extend automatic immunity if major facts — like whether an act was necessary or proper — are in dispute.
“A reasonable jury could come to differing conclusions as to whether Ms. Good was killed in self-defense,” Mannheimer wrote. “In such a case, as in any other, Neagle dictates that a jury gets to make that determination.”
Those disputed facts are what a prosecutor would try to put in front of a judge if they could secure a grand jury indictment. But what kind of jurisdiction? Under federal law, federal officers charged with state crimes while on the job can have the case removed from state court to the federal system. In this scenario, it would be up to a federal judge to apply Minnesota law, but in federal court and under federal judicial procedures. Any jury assembled would still be pulled from a similar pool of Minnesota residents as a state jury. But as Ian Millhiser noted for Vox, prosecuting the officer in federal court would ensure that the case was “decided by federal courts that are increasingly dominated by conservative Republicans.” Crucially, though, a conviction on state charges, even in federal court, would not be eligible for a presidential pardon.
Another potential problem for Minnesota prosecutors would be not only what crime to charge Ross with, but which state laws would govern claims around the reasonableness of his use of force, or any self-defense claims. There are no “excessive force” crimes in the Minnesota criminal code, and in police killings the charges are usually for murder, manslaughter or reckless endangerment. Writing for Lawfare on Thursday, Carolyn Shapiro raised the possibility that local prosecutors could consider charges for multiple agents, based on a state law that requires a shooter or witness to a shooting to render aid to a victim when it is safe to do so. In Good’s shooting, not only did officers reportedly not render aid, they prevented a physician on the scene from attending to her.
While “excessive force” is not a criminal charge, some states, like Minnesota, do have specific laws that govern use of force. That informs possible charges and the legal defenses.
Minnesota’s police deadly force statute, section 609.066, governs the use of force by “peace officers.” But the law also defines that term explicitly around the certifications that state and local police officers must obtain from the state’s Peace Officer Standards and Training board. It’s possible for a federal agent to hold state POST certification, but it’s unclear whether Ross does, and it isn’t typical for federal agents to be licensed that way.
Thomas Gallagher, a criminal defense attorney in Minnesota, told me that a court could reasonably conclude that the statute does not govern an ICE officer’s use of deadly force. But, he added that it “may not make much difference in the end.” Minnesota state law has broader justifications for use of force that would frame the core question of whether the shooting was lawful. That includes the state’s “justifiable taking of a life” statute, which applies to “public officers” rather than peace officers. It is likely — if untested — that an ICE agent could meet that definition.
Sweasy told me that both prosecution and defense would likely want to use the language in the state’s use-of-force law to make their case — so it could wind up being considered in a trial, even if, technically, it doesn’t cover federal agents like Ross. If not that specific statute, Sweasy said a prosecution of Ross could heavily involve similar language in seminal use-of-force cases from the U.S. Supreme Court, like Graham v. Connor and the more recent Barnes v. Felix — which we discussed in a prior edition of this newsletter. In broad strokes, those rulings and the Minnesota statute all declare that deadly force is only justified if an objectively reasonable officer, given all the known details and perceptions about the situation, would believe that deadly force is needed to prevent great bodily harm to themselves or others.
In a trial, none of those statutes or prior cases create a simple answer to the legal questions at hand. The prosecution would instead turn on a judge or jury’s granular sense of reasonableness and on what evidence they’re allowed to use in forming it. Police use-of-force expert Seth Stoughton, a law professor at the University of South Carolina, noted that outside these Minnesota-specific questions, a case like this would likely revolve around the agent’s role in creating any danger he perceived, the choices that led him to near the car’s path, and whether the threat posed by the vehicle could have been addressed through other means.
“Those are difficult questions,” Stoughton wrote, “and they cannot be answered responsibly until the factual record is complete.”