Do ICE Officers Have ‘Immunity’?

States don’t often prosecute federal officers, but they can.

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As often happens, Stephen Miller gave the locker-room talk, which was, more or less: No one can stop us. Back in October, when Illinois Governor J. B. Pritzker objected to having more federal immigration officers in his state, the deputy chief of staff and dominant West Wing voice had a message in response.

“ To all ICE officers, you have federal immunity in the conduct of your duties, and anybody who lays a hand on you or tries to stop you or tries to obstruct you is committing a felony,” he said on Fox News.

After the ICE officer Jonathan Ross shot and killed the protester Renee Good, the administration stuck to that message. It declined to open an investigation into the shooting, and said it would be sending hundreds more ICE officers into the state; then it pushed to instead initiate an investigation into Renee Good’s widow. The we-have-your-back attitude, says our staff writer Nick Miroff, who covers immigration, undoubtedly emboldens ICE. It sends “a signal to continue to do what they’re doing, to not give any ground to protesters or to public officials in Minnesota,” Nick says.

But is Miller correct? Are ICE agents in fact immune? Can anyone hold them accountable? The federal government may have the officers’ backs, but state laws have jurisdiction too, and Minnesota is so far not ceding to the administration’s wishes.

This week, six federal prosecutors in Minnesota resigned reportedly because of the Justice Department’s push to investigate Good’s widow, but not Ross. States and the federal government have historically fought over holding each other’s agents accountable, and states have not always lost.

In this week’s episode, we talk to Bryna Godar, an attorney with the State Democracy Research Initiative at the University of Wisconsin Law School. She studies the power that states have to hold federal officers such as Ross accountable. And we ask Miroff whether ICE is expanding beyond immigration enforcement, turning Homeland Security into an openly political entity that welcomes clashes with American citizens.

The following is a transcript of the episode:

Hanna Rosin: Minneapolis remains tense this week. People are out on the streets clashing with ICE agents. Social media is full of a new kind of video: federal agents not out arresting undocumented immigrants, but getting into physical confrontations with American citizens, sometimes on otherwise quiet suburban streets.

[Music]

Rosin: One video circulating this week showed a masked ICE agent shoving a Minneapolis city councilman into the street.

(Whistles blare.)

Protester 1: Yo! Yo! What the fuck are you doing?

Protester 2: Get the fuck out! Get the fuck out! Get the fuck out!

Rosin: The protests come, of course, after ICE agent Jonathan Ross shot and killed an unarmed protester, Renee Good, in her car. And they’ve grown dramatically with the Trump administration’s response to the shooting, which has been no Department of Justice investigation, no sense of accountability or even discussion of accountability.

In fact, the administration has reflexively defended the shooter and dismissed Good as “highly disrespectful” and committing an “act of domestic terrorism.” And then the administration is sending hundreds more officers into the city to double down on their mission, which leaves citizens everywhere asking, Have we reached the point where a federal agent can shoot an unarmed American citizen and we just continue on with the program?

I’m Hanna Rosin. This is Radio Atlantic. Today: Will there be justice, or will things only get worse?

Back in October, as Illinois leaders pushed back on the immigration deployment in their state, [President Donald] Trump’s deputy chief of staff, Stephen Miller, had this message on Fox News.

Stephen Miller (on Fox News):  To all ICE officers: You have federal immunity in the conduct of your duties, and anybody who lays a hand on you or tries to stop you or tries to obstruct you is committing a felony. You have immunity to perform your duties, and no one—no city official, no state official, no illegal alien, no leftist agitator, or domestic insurrectionist—can prevent you from fulfilling your legal obligations and duties.

[Music]

Rosin: Miller’s message—that you can operate with impunity, even against Americans—suggests that maybe the role of ICE is evolving. Could Homeland Security be turning into an openly political entity that welcomes clashes with American citizens? We’ll talk about that in the second half of the show.

But first, there is another important authority in the mix: the state of Minnesota, which seems not to be falling in line with the administration’s program.

This week, six federal prosecutors in Minnesota reportedly resigned because the Justice Department pushed to investigate Good’s widow, but not the ICE agent who shot Good.

Bryna Godar: I think this does mark a significant shift for the country and is potentially setting up an escalating conflict between states and the federal government in a way that we haven’t seen in a long time.

Rosin: That is Bryna Godar, an attorney with the State Democracy Research Initiative at the University of Wisconsin Law School. Godar studies the power that states have to hold federal officers, like ICE agent Ross, accountable.

I started by asking her about Stepehen Miller’s claim: that they were immune.

Rosin (in interview): Is that a real thing? Do federal officers have this kind of immunity that he’s describing?

Godar: They do not have immunity that is that broad. Federal officers do have some immunity, but it is not absolute immunity for things that they do on the job. They still have to comply with federal laws. They still have to act in a reasonable way in carrying out their duties and not violate people’s rights.

Rosin: If Minnesota decides they wanna charge this specific shooter with a crime, and the federal government has already decided he didn’t do anything wrong, what happens? How does that unfold?

[Music]

Godar: So the state—or in this case, it would likely be Hennepin County prosecutors—could file criminal charges against the officer involved if they think they have enough evidence there. And then that officer would likely claim federal immunity and try to get the case moved to federal court and try to get the charges thrown out based on claims of federal immunity.

And from there, it would just depend on what the federal court decided, of whether the case could proceed. And if it did, then state and local prosecutors would go ahead and take that case to trial in federal court for a state-law crime.

Rosin: So this is a gray area. It’s like, there’s a lot of details to be hashed out—

Godar: Yes.

Rosin: —in a situation like this. Right. And is it the kind of thing that would get adjudicated for years, or is it fairly clear—they put out a warrant for the shooter’s arrest? How does it unfold, in general?

Godar: We have seen some cases take years to resolve on this immunity issue. For example, the 1992 Ruby Ridge incident, where a federal sniper shot and killed an unarmed woman. That took place in 1992, and it wasn’t until 2001 that the Ninth Circuit ultimately ruled that that case could go ahead and that that officer didn’t necessarily have immunity from the state criminal prosecution in that.

So these are not easy cases, and I don’t wanna overstate the ability of states to win these cases. We have seen repeatedly that federal courts will throw out charges if the federal courts think that the officer is acting reasonably and carrying out their federal duties in a reasonable way.

But states have succeeded in getting these cases to trial in cases where the facts were sufficiently disputed, and the federal court agreed that it wasn’t clear that the officer was acting with lawful force. So that’s really the big hurdle here, is if the state can show that there is enough question around the reasonableness of this officer’s actions in order to get over that immunity hurdle.

Rosin: Right, and as you’ve watched the administration respond to this particular case, have you seen them kind of preempt some of these arguments? ’Cause they’re speaking in very specific language about force, the correct use of force, all this kind of stuff.

Godar: This administration is, first of all, trying to say that states don’t even have the power to bring these types of cases, which is just flatly wrong based on this long history of states bringing this exact type of case. And the federal government is definitely trying to spin the narrative in a certain way so that the officer would be able to more easily claim immunity.

But it’s important to note that this would ultimately be a decision in federal court, and it wouldn’t be the federal-administration officials who have been speaking about this being the ones who are making that determination.

Rosin: Right. So they can spin a public narrative, but it doesn’t necessarily affect or determine what happens in the actual courts.

Godar: Exactly.

Rosin: I guess I have a fundamental question, which is: Why is the law designed this way? Why is it important for states to be able to hold the federal government accountable in certain cases?

Godar: Yeah, so this idea of dual sovereignty and the checks and balances that come with that is baked into how our country is designed. So at the founding, there was this idea that, if the federal government overstepped on people’s rights, the states would be there to check the federal government and vice versa. And that was really seen as foundational to protecting people’s rights and guarding against tyranny and abuse from the federal government or state governments.

Throughout history, these cases have come up most frequently during periods of more friction between the states and the federal government.

[Music]

Godar: Some of the times where we’ve seen this come up include the Prohibition era, where there was pretty intense and violent federal enforcement of prohibition laws, and states were charging federal officers with violating various state criminal laws, like manslaughter, murder, assault, in carrying out those actions.

Other times, we’ve seen states more actively pushing back on the enforcement of federal laws, such as when the Fugitive Slave Act was in existence. We saw a number of states, including Wisconsin, charging U.S. marshals with kidnapping for capturing previously enslaved people. And in some of those cases, the federal courts were quite quick to throw out those charges because the federal officers were acting lawfully under federal law, but the states were nevertheless using that as a tool to push back on those federal actions.

And then, conversely, we saw during periods of desegregation some states pushing back on federal government efforts to integrate schools and enforce desegregation policies.

Rosin: So I have heard the administration put out statements to state officials sort of warning them against taking state action.

Godar: Yes, there have been multiple statements from federal officials threatening to charge state and local officials who are considering charges against federal officers, to charge them with federal crimes like obstruction, harboring aliens, conspiring to impede federal officers, or seditious conspiracy. We’ve seen these from U.S. Deputy Attorney General Todd Blanche, as well as Stephen Miller and Attorney General Pam Bondi.

These statements really upend the traditional dynamic in these cases, where it’s typically up to the federal courts to decide whether a state is overstepping in its prosecution, and that’s the check and balance that we have in this system.

I think the goal of these threats is to stop state and local officials from pursuing these types of cases, and I think it’s possible that federal officials could follow up on those threats. I think it’s highly unlikely that they would ultimately succeed in court if state and local officials are really just carrying out their jobs, but that doesn’t mean that federal officials couldn’t try to bring those cases.

Rosin: It’s interesting because, with law-enforcement actions, at least most recently, it’s been the opposite: It’s been federal government putting pressure on states to hold local police departments accountable, like in George Floyd’s death, for example. And now we have this inversion: The state’s trying to put a check on federal officers. How does that inversion change the power dynamic here?

Godar: I think one difficult aspect of it is that it’s not something that we are super familiar with in recent decades. And so I think it’s just unfamiliar to people that states actually have this power and have this role and that that is a proper role for states to play.

And then I think the other way it impacts it is that there are dynamics about the investigation process that are flipped, where instead of concerns about a state withholding information from federal investigators, that is now flipped as well, where there’s concerns about federal investigators withholding information from state investigators.

Rosin: Looking back at the history, is there a case, a moment, an instance, which gives you hope about this situation, where something or someone or some state has risen to the occasion in a way that we can look to now and think, Oh, that’s the model?

Godar: There are several cases where federal courts have recognized that federal officers do not have absolute immunity and that, even where the facts are sufficiently disputed, the case can go ahead, so I would specifically point to the U.S. Supreme Court deciding in a 1906 case where two federal soldiers shot and killed a man who they believed was stealing from federal property.

And we’ve seen this in other cases too, where if the facts are sufficiently in dispute and there’s a version of them that seems to suggest that the officer was just not acting reasonably, those cases can go ahead. Even if the officer ultimately wins at trial, that immunity step, I think, is really important for getting the case over that hurdle and to a trial, and recognizing that it doesn’t have to be that the facts are all predetermined. It can be enough that there is this debate over what the officer did was reasonable.

Rosin: I think what’s challenging about this particular moment is that the federal government didn’t just forego investigating whether the shooting was justified; now they seem to be opening an investigation into Becca Good, the widow of Renee Good. So what do you make of all that—the federal government’s just absolute, definitive stance?

Godar: It is really unprecedented to see that type of extreme defense of an officer before watching the whole process play out and gathering all the facts.

[Music]

Godar: And I think it is a point that really underscores how important it is to have states protecting their residents as well, because if you have one level of government failing at that and violating people’s rights, you really would not have an option if you didn’t have the state there. And so I think this really highlights the importance of that role, and I think seeing if that actually is going to be an effective method of accountability is really important for the future of the country.

Rosin: Well, Bryna, thank you so much for explaining this all to us and its implications.

Godar: Thank you for having me.

Rosin: So in short, no, federal agents, such as ICE officers, do not have absolute immunity—despite what the Trump administration says. States can prosecute federal officers, although we’re not used to seeing that lately, and it sounds like it’s a long road.

So does the average ICE officer on the streets of Minneapolis think they’re immune? And how does that affect their behavior?

After the break, we go inside the Department of Homeland Security. We talk to Nick Miroff, Atlantic staff writer who covers immigration. That’s in a minute.

[Break]

Rosin: Nick, welcome back to the show.

Nick Miroff: Good to be back with you.

Rosin: So it’s already been an eventful year for ICE and DHS, and then came last week.

Hours after Renee Good was killed, we all saw those videos circulating about the shooting, and instead of the usual pledges to investigate that we would expect, Homeland Security Secretary Kristi Noem defended the shooting, called Good’s actions an “act of domestic terrorism.”

For someone who’s followed these agencies for years, what did you make of the administration’s response to what happened?

Miroff: I think it’s a sign of the knee-jerk defensive posture that they are in. It goes hand in hand with the aggressive deployment of these officers and agents in these cities, with marching orders to—let’s think about the “F around and find out” ethos of our foreign-policy adventures in the current moment.

[Music]

Miroff: I think it’s also being applied in a domestic context, and there is a diminishing patience with public pushback, with protest tactics—

Homeland Security Secretary Kristi Noem: —and when a mob of agitators that were harassing them all day began—

Miroff: —with the idea that officers and agents are gonna be restrained and are gonna try to avoid engaging directly with the protests.

Noem: —this appears as an attempt to kill or to cause bodily harm to agents.

Miroff: And so when she immediately leapt to defend Officer Ross’s decisions—

Noem: An act of domestic terrorism.

Miroff: —I saw that as an eagerness to both send a kind of political signal to the president’s base, but also a signal to the broader DHS workforce, which includes ICE, that this White House and this administration is basically gonna defend you no matter what you do.

Rosin: So that’s the administration’s position. What are you hearing from people at ICE and DHS? Are they leaning into this fight? Are they with the administration, either at the leadership level or rank and file? Can you tell?

Miroff: Well, these videos were like a Rorschach test for the country and our politics, and it’s not surprising that that’s also true within the ICE workforce, though it’s not like I’ve done a broad poll, but I have tried to ask almost everybody I can think of what they saw.

And it ranges from—I’ve had very senior ICE officials, who are not softies by any means, tell me that this was just straight-up murder, and that Officer Ross was way out of line and needs to be held accountable in a way that sends a real signal to the rest of the workforce.

But I think that—I would say that, to generalize, most of the ICE officials that I heard from had a kind of a more nuanced view and felt like, once that vehicle was coming at Officer Ross, that he could be found to have made a reasonable decision to fire in self-defense, and that most of the people I spoke to said that he made a very risky decision and putting himself in front of that vehicle with its engine on was inherently dangerous.

And some of the folks I spoke to have heard that he, within the Minneapolis field office, had had a reputation for being really, like, gung ho—one person put it euphemistically: that he was very “enthusiastic” about his job. But he was a guy who was clearly highly trained and was really doing his job aggressively. The incident in June, in which he was very seriously injured, similarly involved taking some risks, some tactics that are generally discouraged. In this case, he was stopping this individual, and he shattered the window, and then he reached into the vehicle, and he ends up getting dragged and all cut up on his arm.

It’s not hard to think that that incident must have played into his mindset when he was approaching Good, but it’s like, if you’ve had that happen to you recently, to go and stand in front of a vehicle like that again is a very dangerous posture to take.

Rosin: Before you knew anything about the shooter, before we even knew his name, would you have guessed it was one of the new recruits? ’Cause you’ve written a lot about how ICE has tried to staff up quickly. Were you surprised to learn that this was actually a veteran officer?

Miroff: I was surprised. My first thought was, like, Oh, wow. Is this one of the new hires that they just rushed through the academy? And so to see that Officer Ross is not only, like, a 10-year veteran of ICE, he’s a member of the Special Response Team, which is their tactical unit that’s the most highly trained, so they are trained to be in more confrontational and riskier situations—he’s not, like, some case officer who’s been pushed out onto the street with a gun and is out of their element. He is used to being in tense, confrontational situations like this. He would’ve practiced these kinds of scenarios many times.

And before that, he was a Border Patrol agent. He was an Iraq War veteran. This is a guy who’s been in military or law-enforcement services his entire career and has had to go through any number of training exercises in which use-of-force policies would be addressed.

Rosin: So how do you make sense of that? The Minneapolis chief of police, recently, when he was criticizing ICE’s actions, referred to that June injury to Officer Ross and whether the agency was making sure he wouldn’t behave unsafely in similar situations. So that’s maybe one theory out there about what happened. Do you have another theory? You just described him as kind of prepared.

Miroff: The interpretation that makes sense to me, that I’ve discussed with some sources—who are just, again, don’t have actual information about the investigation, but are observing, trying to formulate a version of what could have happened based on the videos—is that they were preparing to maybe arrest Renee Good and her partner for obstruction.

[Music, followed by siren blaring]

Miroff: And so you see that he pulls out his phone, and he’s going around the vehicle recording her license plate.

Becca Good (in video of her encounter with Jonathan Ross): It’s okay. We don’t change our plates every morning, just so you know.

Miroff: And then, at the moment when he seems to sort of complete the circumnavigation of the vehicle, that’s when she’s simultaneously hearing from her partner to drive—

Good: Drive, baby! Drive! Drive!

Miroff: —grabbing the passenger-side handle, while you have another ICE officer approaching, telling her to get the F out of the car.

ICE officer: Out of the car. Get out of the fucking car.

Miroff: And then she starts turning the wheel and hits the gas, and it’s impossible to know, was he looking at his phone? What was he looking at, right? And all of that is gonna come out in the investigation.

But I think these things are entirely split-second decisions, and he, based on what we’ve seen from the video, seemed like he was pretty antagonized and was in a pretty aggressive mindset, based on just his conduct in the 40-odd seconds.

So it’s really gonna come down to: Was it a reasonable decision to start to open fire once that vehicle was rolling? And so, again, a lot of the ICE officers I’ve talked to about this think it probably was. And we could end up where—

Rosin: Was or wasn’t?

Miroff: It was.

Rosin: Uh-huh.

Miroff: You could end up with a kind of situation where he will be faulted for putting himself in a dangerous situation, but he wouldn’t be held criminally liable for killing Renee Good, because the vehicle was coming at him and he had a reasonable fear that he could be killed or injured.

Rosin: So there’s the details of this case, and then there’s the administration’s response, which is a reflexive defense of this officer. And then there’s this week, in which things seem to be amping up in Minneapolis. We’ve seen videos of ICE agents breaking a car window, shoving a city councilman. How do you think the administration response is affecting how ICE officers are behaving on the streets? Does it embolden them? Are they worried? What’s your sense of that?

Miroff: I think it emboldens them. I think when they see other administration officials with this kind of unqualified defense of whatever they’re doing, and an investigation that is trying to criminalize Renee Good and her partner, turning the focus of the attention to them, I think that that undoubtedly sends a signal to continue to do what they’re doing, to not give any ground to protesters or to public officials in Minnesota.

And what we saw in Chicago in the late summer and fall was not dissimilar.

[Music]

Miroff: They shot and killed a guy who wouldn’t comply with their orders in his car.

News anchor (from NBC Chicago): It happened during a traffic stop in Franklin Park. According to the Department of Homeland Security, the man resisted arrest and dragged the officer—

Miroff: They shot a protester, Marimar Martinez, who was in her vehicle, five times—

News anchor (from ABC 7 Chicago): The Department of Homeland Security says the woman was one of several people using their vehicles to box in agents—

Miroff: —and then tried to charge her with a federal crime, ultimately dropping the charges.

But, again, we saw protesters and agents and officers in these intense confrontations in the street. We saw them pulling their guns. We saw them shooting people. But once the evidence made its way into courtrooms, and it started to go badly for the administration, the administration kind of pulled back.

And we’re at the stage right now where it’s too early to say what their response will be once evidence involving this shooting and other incidents is introduced into court. But it doesn’t seem like this administration is gonna back down from street-level protests or from public officials in Minneapolis dropping F-bombs at press conferences.

Rosin: Okay, so we spoke to an attorney, who told us that, despite the federal government saying, We have your back, it’s not actually true; states can prosecute ICE officers, or they have some tools to do that. What do you think the rank-and-file ICE officers believe? Do you think they believe they’re immune? Do they know this?

Miroff: I don’t know. I’ve heard that, but what is an example of a state successfully prosecuting a federal law-enforcement officer in recent years based on a use-of-force incident of this kind? Everybody I asked about this told me that these cases are transferred into federal court and that it’s extremely rare for state or local jurisdictions to successfully bring charges against a federal law-enforcement officer accused of wrongdoing while in the course of their duties.

Rosin: So I guess there’s two things here. It’s definitely possible, but maybe it hasn’t happened in recent history, so it’s not prime in their minds. The bigger thing, though, is the things that you’re describing—me, as an average citizen, I look at ICE; I think, Oh, ICE had a mandate to find undocumented immigrants. What you and I are talking about here is: ICE shot an American citizen, or ICE going after an American citizen. That is very, very, very different. Do you see it as different? Do you see ICE as evolving into a very different role than what it initially started as or what one would think ICE is?

Miroff: Absolutely. Just to be clear, there is no precedent for what we’re seeing right now, where the Border Patrol and ICE officers are in the streets of American cities, in neighborhoods, pulling cars over, confronting protesters, zooming around in unmarked cars with masks on. This is just not what these agencies were created to do.

And so at the root of all of this is the Trump administration’s quest for a million deportations a year, a mass-deportation campaign that is going to happen in this episodic, rolling basis in blue, Democratic-run cities, and a desire to have imagery of confrontation in which they can have this political fight over immigration, the future of this country, left-wing protesters, have all of these things play out on social media, on television. I think that they think it is winning politics for them, and I think that they think that this is winning policy for them. This is what Stephen Miller has been building up to his entire political career.

We didn’t see it on this kind of level in the first Trump administration, because there were checks, there were safeguards, the border was still the focus. But now that the border is basically closed, and all of the energy and the resources and attention are on this deportation campaign, these confrontations are what they’ve been building up to for a long time.

Rosin: So where this goes—Trump is not gonna be president forever. It does feel right now like the Department of Homeland Security has become much more openly political than we’re used to a federal department being. So do the DHS people worry about what happens when Trump is not in office?

Miroff: So this is something that I’m writing about this week. And I think that the main takeaway is that the Department of Homeland Security has gotten way off of its foundational mission.

[Music]

Miroff: But at the core of it is this unresolved conflict in our politics and our country about immigration enforcement, and the role of immigration and immigrants in American society. And there are two completely divergent visions right now that are clashing in a way we’ve never seen.

Rosin: Thank you, Nick. Thanks for joining us.

Miroff: My pleasure. Always good to be with you.

Rosin: This episode of Radio Atlantic was produced by Rosie Hughes and Jinae West. It was edited by Kevin Townsend and fact-checked by Álex Maroño Porto. Rob Smierciak engineered and composed original music. Claudine Ebeid is the executive producer of audio at The Atlantic, and Andrea Valdez is our managing editor.

Listeners, if you enjoy the show, you can support our work and the work of all Atlantic journalists when you subscribe to The Atlantic at TheAtlantic.com/Listener.

I’m Hanna Rosin. Thank you for listening.