Do ICE agents have absolute immunity? No, experts say, but it’s not easy for a state to prosecute

By Devan Cole, CNN

(CNN) — Vice President JD Vance’s claim Thursday that an Immigration and Customs Enforcement officer who fatally shot Renee Nicole Good in Minneapolis is “protected by absolute immunity” drew immediate pushback from experts who said the legal landscape around a potential prosecution is far more complicated.

Speaking at the White House, Vance appeared to try to stymie any efforts by Minnesota prosecutors to pursue a criminal case against the agent.

“The precedent here is very simple. You have a federal law enforcement official engaging in federal law enforcement action – that’s a federal issue. That guy is protected by absolute immunity. He was doing his job,” Vance said, echoing others in the Trump administration. “I’ve never seen anything like that. It would get tossed out by a judge.”

That assessment was quickly met with skepticism by experts who said the vice president was overstating the law around immunity for federal officials. Vance’s comments come amid nationwide protests of ICE officials and criticism of the agency’s efforts to carry out a historic deportation campaign with little to no oversight.

“The idea that a federal agent has absolute immunity for crimes they commit on the job is absolutely ridiculous,” said Michael J.Z. Mannheimer, a constitutional law expert at Northern Kentucky University’s Salmon P. Chase College of Law.

Mannheimer said that more than 120 years of case law on the issue of so-called supremacy clause immunity has shown that federal officials can be criminally pursued by state prosecutors for conduct taken in the course of their official duties but that it’s up to courts to ultimately determine whether they can be shielded from the charges.

“Officers are not entitled to absolute immunity as a matter of law,” said Timothy Sini, a former federal prosecutor in New York.

But, prosecuting the shooter or another ICE officer in a similar position would not be simple.

A federal official charged with state crimes for actions taken in the course of their position could attempt to move the matter to federal court, Sini said, where they would then raise their immunity arguments.

The federal judge tasked with overseeing the case would have to conduct a two-part analysis to determine whether the official enjoys immunity in the case. First, the judge would have to decide whether the agent was acting in the course of their official duties, which is a relatively low bar to pass.

But the second question is much more complex: it turns on whether the action taken was reasonable based on the totality of the circumstances on the ground. That question would be subject to an extensive inquiry that could involve witness testimony, video evidence and the like.

“At every step of the way, (reasonableness is) essentially what you’re determining,” Sini said.

“And what is objectively reasonable under the particular circumstances is evaluated from the perspective of a reasonable officer on the scene and turns on those facts known to the officer at the precise moment,” he added.

In this case, the question of whether state charges would ever be brought against the agent, who shot and killed Good, 37, while she was seated in the driver’s seat of her car, is clouded because of the investigation itself. The Department of Homeland Security described Good as a “rioter” who was obstructing and attempting to use her vehicle against officers enforcing immigration laws. Three videos taken of the scene and reviewed by CNN, however, show a more nuanced picture of the scene.

Local investigators said Thursday morning that federal officials blocked them from participating in a probe into the dramatic and deadly incident that unfolded a day earlier, drawing outrage from Minnesota’s governor and attorney general.

The decision meant that the Minnesota Bureau of Criminal Apprehension, which was planning to jointly investigate the matter with the Federal Bureau of Investigation, currently has few tools available to fully scrutinize the shooting and provide its findings to county prosecutors, who would then determine whether the agent should face state charges.

“Without complete access to the evidence, witnesses and information collected, we cannot meet the investigative standards that Minnesota law and the public demands,” BCA Superintendent Drew Evans said in a statement, adding that his agency expects the FBI to conduct “a thorough and complete investigation” and share its file with state and federal prosecutors.

Could federal charges or a civil lawsuit be brought?

Comments from President Donald Trump, Vance, Homeland Security Secretary Kristi Noem and others in the administration suggest little appetite for bringing federal charges against the shooter.

But if they chose, prosecutors could employ a powerful law used in other use of force cases: deprivation of rights under color of law.

That charge has been brought in numerous other high-profile federal cases involving deadly interactions with officers, including one brought against Minneapolis Police Department officers who failed to intervene as George Floyd was being subjected to unreasonable force by another officer.

Winning a conviction at trial for that charge would also be an uphill battle, according to Sini, who explained that prosecutors would need to prove that the agent willfully violated the law.

“It would be a very tough case,” he said. “Prosecutors would have to prove beyond a reasonable doubt that there was a willful deprivation of the victim’s rights – here it would be the right to be free from excessive use of force.”

It’s also possible that Good’s family could file a civil lawsuit against the agent who shot her, bringing a wrongful death claim that seeks monetary damages.

But that, too, could face significant hurdles in court because of the qualified immunity question.

“In the event of a civil lawsuit in federal court, I think you could obviously expect that the government would assert that defense right out of the chute, and that, if it’s successful of course, is a complete bar to the lawsuit proceeding at all,” said Amy Sweasy, a former longtime prosecutor in the Hennepin County Attorney’s Office, which prosecutes cases in Minneapolis.

Still, that outcome is not a guarantee, said Ilya Somin, a law professor at George Mason University and a scholar at the Cato Institute, a libertarian think tank.

“Courts have sometimes been willing to set aside qualified immunity in cases where facts are particularly egregious and they certainly are extremely egregious here,” he said, referring to Wednesday’s shooting.

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