The path to possible prosecution of an ICE officer

Minnesota state and local prosecutors investigating the shooting death of Renee Good face an uphill battle.

On Thursday, the FBI abruptly announced that I wouldn’t share evidence met about Good’s Jan. 7 murder at the hands of an ICE officer from the Minnesota Bureau of Criminal Apprehension, the state agency.

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

Now that the FBI has become the “sole investigative agency,” she saying In a statement earlier this week, “the State will not receive the results of the investigation and our community may never know its contents.”

It spells trouble for any path toward answers or accountability for Good’s death, including the potential for prosecution if authorities believe a crime has been committed. To prosecute a crime, any crime, an investigation must first be opened: this investigation allows evidence to be examined and prosecutors to decide whether criminal charges should be filed.

At a news conference Friday, Moriarity said, “We don’t know if, without the FBI case file, we’ll even be able to make a charging decision,” he added.

States have the right to prosecute federal officials when they violate state criminal laws. In the Supreme Court of 1906 case Drury v. Lewis, the judges ruled that when federal agents are found to be operating outside the law or using unauthorized force, they are absolutely eligible to be prosecuted.

If those efforts are successful or if a federal official even goes to trial, It depends deeply on the question of immunity.according to Bryna Godar, an attorney with the State Democracy Research Initiative at the University of Wisconsin School of Law, at a press conference Thursday.

“In these cases, not only are you looking at the facts of the case and how to present charges to a jury, but you potentially have to deal with whether the officer is immune,” Godar said. And that is not simple at all.

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

According to the Constitution supremacy clausefederal officials may be considered immune from prosecution for actions they take in the performance of their duties, but it is not guaranteed.

Whether a federal agent can successfully invoke immunity in court depends on whether a judge finds that agent acting in a manner authorized by federal law; and whether the agent was taking actions considered necessary, reasonable and appropriate to carry out his federal duties. But performing an immunity test can take a long, long time.

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

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

“The key facts were in dispute,” Godar said, linked to whether the lethal force used in the shooting was actually reasonable.

After an FBI sniper shot and killed an unarmed woman as part of a cabin siege near Ruby Ridge, Idaho, federal and state investigations were launched. Bill Barr, then attorney general of the United States, decided not to file federal criminal charges against the FBI agent. However, an Idaho prosecutor filed state charges of involuntary manslaughter. The government then went to the Ninth Circuit Court of Appeals and demanded that the case be stopped before it could continue.

But the government lost. The case was dropped more than 20 years later, after a successive state prosecutor found that The state did not have enough evidence. to obtain a conviction and that too much time had passed.

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Often, federal agents facing state or county prosecutors will try to move their case from state to federal court, Godar said. They argue that since they are federal officials, their case should be heard in federal court.

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

But even if a federal headquarters is allowed, there is a drawback worth noting, he said.

“The charges would still be for a state law crime, and if they ultimately lead to a conviction, that means the president would not be able to pardon that conviction. The president can only pardon convictions for federal crimes, not state crimes, and the fact that this played out in federal court would not automatically make it a federal criminal conviction,” Godar said.

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

“But we are not in a normal world. We are in a world where the federal government is obfuscating, lying, obstructing investigations and generally encouraging the same types of behaviors that have led to these dangerous and tragic situations. That is why it is vital in this circumstance that state and local governments use all of their authorities to their fullest effect, to the greatest extent possible,” he said on the press call.

At this point, Moriarty said the FBI has seized key evidence, including Good’s car. They also took bullet casings from the scene and kept the records of the interviews with the agents.

“If state investigators can’t get the same information they would 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 the ability of state and local authorities to bring a case,” Godar said.

When Minnesota Attorney General Keith Ellison was asked Friday why the Trump administration rushed to take over the investigation, he seemed baffled.

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

Carolyn Shapiro, a professor at Chicago-Kent College of Law and former Illinois attorney general, added that it may be “practically premature” to say that the FBI will completely exclude investigators from the state or Hennepin County.

So far, however, there is little indication that Trump administration officials or the FBI intend to cooperate.

If they so choose, and especially if the path to criminal prosecution is closed, Good’s family could seek some form of justice in civil court.

They could sue under the Federal Tort Claims Act for monetary damages, for example. Good’s heirs could fight to call the federal agent’s activity “dishonest” and, at the very least, perhaps even win a ruling simply declaring that the mother of three’s constitutional rights were violated.