States can step into the breach
Just because Pam Bondi won't hold Trump's thugs accountable doesn't mean they're above all laws.
🗣️ Paid subscribers make Public Notice possible. If you appreciate our fiercely independent coverage of American politics, please support us. 👇
As the nation confronts growing ranks of ICE officers engaging in systemic illegality on the streets of the nation’s cities and towns with the overt approval of the Trump administration, the question arises as to whether states have the ability to hold these rogue cops to account.
In just a few short months, it has become routine for gangs of masked ICE storm troopers to run rampant, engaging in patently illegal acts of brutality as they mass arrest people without due process and detain them in ad hoc concentration camps, some located inside federal office buildings.
Just in the past week, ICE officers have been videotaped brutally beating a gardener who’s the father of three Marines, apparently because he was “aggressively” trimming the hedges outside an IHOP. Other masked thugs tackled and detained a US citizen as she filmed them bragging about grabbing “31 bodies” outside a Home Depot.
The audacious lawlessness of these federal “immigration enforcement” officers has reached the point that they now feel free to assault elected officials who have the temerity to call out their illegal acts. Plainly, these masked thugs are acting with full confidence that, far from holding them to account, their supervisors — and even agency heads — endorse their systemic criminality.
Given that Trump administration officials are giving license to mass criminality among federal law enforcement officers, there may be only one remaining avenue for bringing such criminal cops to justice: State prosecutions.
The “states’ rights” option
The Supreme Court has long recognized that federal officers can be held to account under state criminal laws under certain circumstances, though such charges are rare.
Until recently, most liberals would have been uncomfortable with the idea of states taking action against, let alone prosecuting, federal workers — particularly federal law enforcement officers. This is because, since the Civil War, and especially since the Civil Rights movement of the 1950s and ‘60s, federal law enforcement agencies have been called upon to enforce the rights of people of color and others facing mistreatment by state and local governments.
And, prior to the Trump era, those advancing the principle of “states’ rights” against purported federal overreach have typically been on the right — sometimes the extremist right.
For example, until recent weeks, the most notorious example of a president federalizing the national guard occurred in 1963, when John F. Kennedy took control of the Alabama Guard to ensure the admission of two Black students at the University of Alabama in the face of obstruction by the state’s governor, George Wallace.
In that context, it is unsurprising that some of the most significant examples of state prosecutions of federal officers were also associated with right-wing and even Confederate causes.
In the 1890 case of In re Neagle, for instance, the Supreme Court voided the California prosecution of US Marshal David Neagle who shot and killed a former Confederate soldier and judge, mistakenly believing he was about to knife Supreme Court Justice Stephen Field, a Lincoln nominee. More recently, in 2001, a federal appellate court hearing the case of Idaho v. Horiuchi (in a subsequently vacated ruling) left open the possibility that an FBI agent could be prosecuted for manslaughter after mistakenly shooting the wife of a militia member during the infamous Ruby Ridge standoff between an armed militia and the FBI.
Today, however, Trump’s authoritarian assault on our democracy has made the prospect of states prosecuting federal law enforcement officers to protect their residents from grave civil rights violations appear not only potentially appropriate, but possibly essential.
A note from Aaron: Enjoy this article from David? Then please sign up to support our work. Public Notice is 100 percent reader-funded.👇
The Supremacy Clause
State prosecutions of federal officers are limited by the Supremacy Clause of Article VI of the Constitution, which provides that federal law takes precedence where it conflicts with state law. The Supreme Court has interpreted the Clause to grant federal officials immunity from some state criminal prosecutions.
Under the governing standard, a federal officer cannot face state prosecution if their allegedly criminal conduct was authorized by federal law and they did no more than what was necessary and proper in discharging his or her duties. In many cases, this standard imposes a high hurdle for state prosecutors.
Additionally, most state criminal cases against federal officers are heard in federal courts because of a statute that broadly permits them to be “removed,” and federal judges have typically construed the scope of federal law enforcement officers’ authority broadly. Courts, for instance, often give wide berth to claims by officers that their actions were sanctioned by federal statutes or regulations, even when the discharge of their weapons leads to the deaths of innocents.
But as demonstrated by cases like Horiuchi, which ended only after the state prosecutor dropped its charges against the FBI agent (after which the appellate court vacated its ruling), federal defendants who allegedly engage in egregious misconduct may well be held to account under state criminal laws.
That brings us to our current darkly anomalous times, in which gangs of masked federal “police” officers are now routinely breaking laws and abusing their power, often while being filmed, and with brazen confidence that they will not be held accountable for their illegal conduct.
Systemic lawbreakers don’t deserve deference
ICE thugs have good reason to expect their superiors will give them a pass for even egregious misconduct, and are behaving accordingly. But some officers may be less cavalier about abusing their power if they are on notice that they face the risk of being held accountable under state criminal laws.
It’s unlikely that most federal judges will be convinced by arguments that ICE officers are duly “authorized” to engage in conduct such as arresting and jailing people without probable cause, brutalizing detainees, and even arresting US citizens for exercising their right to protest — conduct of a sort that frequently gives rise to civil liability under federal civil rights laws.
We can expect that Trump officials will come before courts to argue they have in fact purported to have “authorized” some of the outrageous misconduct by ICE officers that has been witnessed and captured on tape. In fact, the DOJ has even issued formal guidance that appears to cloak illegal arrests by ICE in a veil of legality.
But while grave misconduct by ICE officers has rapidly become normalized, it has not suddenly become legal. Furthermore, given their recent experiences, many federal judges are likely to view attempts by Trump officials to “authorize” abusive policing practices with jaundiced eyes.
Since January of this year, many federal judges have presided over cases in which senior government officials have not only advocated in favor of patently illegal government policies, but also have routinely violated judicial orders.
That has led some judges to inquire into whether senior federal officers are liable for contempt, including in the now notorious case of Abrego Garcia, where administration officials resisted repeated orders to take the steps necessary to “facilitate” Garcia’s return from the El Salvadoran prison to which he had mistakenly been sent — until they belatedly obtained his return, albeit to face questionable criminal charges.
And in a recently disclosed whistleblower report, former DOJ immigration prosecutor Erez Reuveni — who was fired for acknowledging Garcia had been mistakenly sent to the foreign jail — alleged that Emil Bove, a high level DOJ official (and former Trump defense attorney) whom Trump has has nominated to a federal appellate court, discussed plans to defy court orders and withhold information from judges.
Drawing lines is important
Readers should not get the impression that state criminal charges of federal officers are likely to become routine, or that such prosecutions will be easy to sustain. Federal courts are far from used to presiding over such state law prosecutions, and officers facing such charges are often able to put forth robust constitutional immunity defenses.
But at the very least, the prospect of federal charges should have the salutary effect of sending a message to the thugs who are running rampant in the streets of our nation’s cities that — contrary to their current expectation — they will face consequences for overstepping lines.
In April, a Virginia prosecutor announced that his office was commencing a criminal investigation after ICE officers allegedly illegally arrested and detained bystanders observing one of their “enforcement actions” in a state courthouse. Other state prosecutors should likewise begin to investigate, and where the evidence supports it, bring charges in cases arising from criminal misconduct by federal law enforcement officers.
If the gangs of rogue cops roaming the streets of our cities start to recognize that they may actually be held to account for breaking the law, they may start to think twice before violating the rights of immigrants, or of citizens peacefully seeking to aid them. And with the DOJ totally corrupted, it’s important to get any accountability we can.
That’s it for today
We’ll be back with more tomorrow. If you appreciate today’s newsletter, please do your part to keep Public Notice free by signing up for a paid subscription.
Thanks for reading, and for your support.
I would think that even modest policing of the most egregious offenders would put a damper on these roving bands of thugs. If these mercenaries risk spending time in jail, even overnight, I think the bounties they have been offered would seem less attractive.
ICE thugs behaving less like thugs because they fear they may end up charged under state laws and won't be protected by the highly politicized DOJ? I'll believe it when I see it. Let's not forget some people ENJOY acting like thugs and the short term thrill of such actions can outweigh decision making even if it has likely long term legal problems. That's why so many criminals exist- especially the all too common repeat offenders.