Time to fight ICE in the courts - and in Congress (Part 1)

The horrific out-of-control murders by ICE agents must result in prosecutions, lawsuits, and new legislation to hold these killers accountable.

After the murders of Renee Good and Alex Pretti in Minneapolis this month, the question I have heard the most is whether anything can possibly be done to bring the killers to justice.

Or is it actually (and disgustingly) accurate when JD Vance has declared that the ICE agents slaughtering innocent peaceful American citizens have “absolute immunity”?

If a federal officer murders you for trying to drive away, or for trying to help someone who’s been pushed to the ground, or for using your phone to record those officers, or for having a legal firearm — is there any recourse at all?

Why hasn’t anything been done to these killers? Will anything ever happen?

Or are they effectively above the law, able to act with total impunity, a law unto themselves, Trump’s personal Gestapo or SS, the bloody knife edge of fascism and tyranny cutting off nearly 250 years of freedom?

The memorial near the site of Alex Pretti’s death. (Photo: Chad Davis)

There are times for more measured responses, more methodical approaches, a slow analysis of whether a case is worth bringing, a sober and relentlessly realistic calculation that some fights are not worth fighting because they cannot be won.

This is not that time.

This is a time to bring cases that may not win, that may be blocked, that may result in defeats that are reversed in time, that may result in victories that are later heartbreakingly undone.

As we will see, many of the paths ahead may lead to nothing — at first. But even the losses will shine a light on the the future paths that must be cleared through the wilderness we now inhabit.

1 - State prosecutions of federal officers

The loudest cry of all in the wake of the Good and Pretti executions has been for state law prosecutions of the murderers.

This will be an uphill battle, but far from an insurmountable one. Federal officers are subject to state law, but they have what is known as “qualified immunity.” It’s immunity — but with conditions. Among them, the condition that the officer was acting reasonably in the “necessary and proper” discharge of his official duties.

This is a winnable fight. There is absolutely an argument to be made that when these ICE agents used lethal force on civilians who were posing no physical threat to them, they were engaging in actions that were not reasonable and not necessary to their official work. Good was clearly driving away at the time Jonathan Ross shot her, and Ross had no authority to stop Good in the first place. Pretti was helping someone who had been pushed down, then engaged verbally with ICE officers, while recording the situation with his phone. Neither posed any physical threat to anyone. It is clear that the killers acted because their perceived authority was being defied — not because of any actual threat. And peacefully defying authority is not a justification for lethal force.

The district attorney for Minneapolis, Hennepin County Attorney Mary Moriarty, should without a doubt bring cases to prosecute these killers. The cases would be brought in state court. The federal government would then almost certainly remove the cases to federal court and move to dismiss them based on immunity. But then a federal judge in Minnesota would determine whether the case can go forward — and there is a good chance that one or both cases would indeed proceed.

After that though, admittedly, the road will be far harder. Minnesota is in the Eighth Circuit, which is among the most conservative in the Court of Appeals system — with 15 Republican-appointed judges and, somehow, only one lonely Democratically appointed one. It is possible to draw a three-judge panel that will adhere to the law and find that these cases could move forward, but the odds are not favorable. And even then, there would be the Supreme Court to contend with.

But there are now wonderfully encouraging signs that prosecutions may be forthcoming — even if they may not succeed. A coalition of 9 district attorneys have formed the wonderfully named Fight Against Federal Overreach (yes, FAFO), pledging to join forces to prosecute any federal officers who commit crimes in their cities.

And Mary Moriarty is one of them.

To be continued…