After an ICE agent shot and killed Renee Good in Minneapolis earlier this month, Vice President J.D. Vance gave a press conference during which he claimed that the officer has “absolute immunity.” Around the same time, the Department of Homeland Security’s Twitter/X feed shared a 3-month-old clip of Presidential Aide Stephen Miller telling ICE officers they have “federal immunity.” On the other side of the political aisle, prominent democrats throughout the State of Minnesota and the country have called for state prosecutors to bring murder charges against the responsible officer.
But can a state prosecutor actually bring charges against the ICE agent responsible for Good’s death? As is so often the case with questions of constitutional law, it depends.
The Supremacy Clause
Under the Supremacy Clause (Article VI, Clause 2) of the Constitution, states may not interfere with the execution of federal law. Courts have long recognized that this principle protects federal officers from state criminal prosecution when they act within the scope of their federal authority. The foundational case is In re Neagle, where the U.S. Supreme Court held that a U.S. Marshal who killed a man while protecting a Supreme Court Justice was immune from state murder charges. 135 U.S. 1 (1890). From that case, federal courts have developed a two-part test under which a federal officer is immune from state prosecution if the officer (1) was authorized by federal law to perform the act, and (2) reasonably believed the act was necessary and proper to carry out federal duties.
Notably, this standard focuses on objective reasonableness, not hindsight or perfect decision-making. This doctrine does not require that the officer’s conduct be error free or even the least intrusive option in hindsight. Instead, courts ask whether a reasonable federal officer could have believed the conduct was necessary to fulfill a federal mission. Federal courts of appeal have consistently applied this protection in cases involving use of force, arrests, and fugitive apprehensions, often dismissing state criminal charges before trial.
Accordingly, while Supremacy Clause immunity is powerful, it is not absolute. For example, courts have held that such immunity does not apply where the acts in question were driven by personal motives, were “wholly unrelated” to federal duties, or where behavior was so excessive that no reasonable offer could believe it was necessary under the circumstances. Because the shooting of Renee Good does not appear – at least initially – to be motivated by any personal motive and is not “wholly unrelated” to the ICE agent’s federal duties, a state prosecutor would have to show that the officer’s force was unreasonably excessive under the circumstances in order to avoid the application of federal immunity.
There are several appellate court decisions that may guide a court’s analysis. In Clifton v. Cox, for example, the Ninth Circuit affirmed the district court’s finding that a DEA agent was entitled to immunity under the Supremacy Clause where he shot and killed a fleeing suspect during a drug investigation. 549 F.2d 722 (9th Cir. 1977). The Ninth Circuit in Clifton held that Supremacy Clause immunity applied because the agent was performing a federal drug enforcement function and he reasonably believed deadly force was necessary under the circumstances. However, the court stressed that “[i]n so holding, we do not mean to imply that the exercise of authority in and of itself places a federal officer beyond the reach of a state’s criminal process. The significant question of whether the conduct was necessary and proper under the circumstances must still be answered.”
Although there does not appear to be any published cases from the Eighth Circuit Court of Appeals on this specific topic, there is a published decision from the District of Minnesota in 2008 that might be particularly relevant. In Minnesota v. Weber, a U.S. Border Patrol Agent struck and killed a pedestrian with her vehicle while on patrol (but not on the way to an emergency). 589 F.Supp.2d 1170 (D. Minn. 2008). After the agent was indicted by a state grand jury for two misdemeanor traffic violations, she removed the action to federal court under 28 U.S.C. § 1442(a), and then argued that she was entitled to immunity under the Supremacy Clause.
The Court in Weber held that “[i]n the context of a criminal prosecution, the immunity defense bars a state from prosecuting a federal agent for alleged violations of a state criminal law if (1) the federal agent was performing an act which [s]he was authorized to do by the law of the United States and (2) in performing that authorized act, the federal agent did no more than what was necessary and proper for h[er] to do.” After an evidentiary hearing, the court held that the agent was not entitled to immunity because she could not establish that the accident was the result of an exigency or emergency related to her official duties.
Application to Renee Good Shooting
Based on this precedent, whether the ICE agent who shot and killed Renee Good is immune from state prosecution will depend on whether a judge finds that the agent acted reasonably under the circumstances. If a state grand jury does return an indictment, the ICE agent will be entitled to remove the case to federal court under 28 U.S.C. § 1442(a) if he can show that he was acting under color of federal law and that his federal immunity defense is at least “plausible.” Minnesota v. Weber, 2007 WL 4572513 (Oct. 14, 2008). If he can make that showing, a federal judge would be compelled to dismiss the case. If not, state prosecutors could proceed with trying the case before a federal judge and jury.
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