Agents of federal Immigration and Customs Enforcement (ICE) have once again been involved in a shooting, this time killing 37-year-old Renee Good in Minneapolis. Even for those skeptical of claims of lawlessness by ICE agents, the video evidence, found here, is pretty damning. The initial claim by Secretary of Homeland Security Kristi Noem is that the officer who fired was acting in self-defense in response to the danger that Good would hit him, causing serious injury or death. Yet, at the critical moment when the agent drew his gun and fired, the vehicle was already turning to the right to evade, not to injure or kill, the agents. Moreover, it is fairly obvious that the agent who fired the shots needed only to take a step or two to his right to avoid being hit by the vehicle, as he ultimately did. In order to claim self-defense in any Anglo-American jurisdiction, someone using deadly force must have a reasonable belief in the necessity of doing so – that he had no other alternative. This is true even in a no-duty-to-retreat State, where he can use such force only if he had no other alternative other than by retreating. This seems to be a case where state prosecution of the ICE agent is clearly warranted.
Local prosecutors might be dissuaded from prosecuting under such circumstances by the doctrine of so-called “Supremacy Clause Immunity.” Yet, as I argue here, such immunity – which is not really “immunity” at all – applies only in a very narrow band of cases in which the agent’s conduct is indisputably not criminal under state law. The doctrine stems from the 1890 U.S. Supreme Court case of Cunningham v. Neagle, in which the Court upheld the grant of habeas relief to Deputy U.S. Marshall David Neagle who was charged with murder in California state court. Neagle had killed someone who was in the process of attacking Supreme Court Justice Stephen Field, and California never disputed that Neagle was justified under state-law doctrines of self-defense and defense-of-others. Rather, California’s sole argument was that the federal courts lacked jurisdiction over the case – that it was for the California courts to decide whether Neagle was justified. The Supreme Court rejected this argument, holding, in essence, that because Neagle was acting within the scope of his federal duties in protecting Justice Field and because there was no dispute that he was justified under state law, he was entitled to habeas relief. And not once did the Court describe the consequences of the relief it was granting as “immunity.”
By contrast, the Court denied habeas relief sixteen years later in United States ex. rel. Drury v. Lewis. In that instance, there was a factual dispute over whether the state court defendants, U.S. soldiers stationed in Pittsburgh, had shot the victim as he was fleeing, which would make the shooting justified under state law, or, instead, had shot him after he gave himself up. Such factual disputes, the Court said, are for state court juries, not federal courts.
Unfortunately, some lower courts have badly misread Neagle in two distinct ways. First, many have declared state law to be irrelevant to the “immunity” question, whereas Neagle said that the two were intertwined. And second, many have arrogated to themselves the power to determine disputed questions over the reasonableness of the federal officer’s conduct, whereas Neagle and Drury together demand that disputed and disputable questions of fact be handled, as in any other case, by submitting them to a jury.
In short, in cases where there is any disputed factual issue over the defendant’s guilt, Neagle relief must be denied. This describes almost perfectly the most recent shooting by an ICE officer, who a reasonable jury could find was unjustified under state law in his use of deadly force. The potential for prosecution in such cases should be treated as in any other. Supremacy Clause “Immunity” is no bar.
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