Advisory Opinions | The Dispatch

Episode: "Analyzing ICE Shootings" – January 27, 2026

Hosts: Sarah Isgur & David French
Special Guest: Prof. Orin Kerr (Stanford Law, Fourth Amendment expert)

Episode Overview

In this deeply analytical episode, Sarah and David examine the legal complexities surrounding two fatal ICE (Immigration and Customs Enforcement) shootings in Minnesota. The hosts break down why charges against federal officers are almost impossible, the differences in criminal and civil liability, and dig into Fourth Amendment protections (or lack thereof) with expert guest Orin Kerr. Later, they discuss the latest contentious decision in California’s redistricting, and round out with heartfelt career advice for 9-year-old aspiring lawyer, Claire—drawing wisdom from the legal community.

Tone: Analytical, conversational, occasionally wry, and supportive—especially in listener Q&A.

Key Discussion Points & Insights

1. Comparing the Renee Goode and Alex Preddy ICE Shootings

(start ~05:09)

• Legal Outcome for Renee Goode Shooting:
  Prosecution unlikely; federal officers’ actions are protected by federal officer removal and Supremacy Clause immunity.

  “At the very end of this is the fact that they're federal officers. This will get removed to federal court … That case is almost certainly going to get tossed out.”
  (Sarah, 05:09)

• The Alex Preddy Shooting: Key Legal Distinctions

  • No Immediate Threat Element:
    David notes a fundamental difference—the lack of “mortal threat” from Preddy to officers, compared to the Goode case’s car encounter.

    “I do not think there is a case to be made that Alex Preddy was a mortal threat to the officers when he was shot.”
    (David, 06:16)

  • Hypotheticals on Use of Force:
    Sarah runs through scenarios (e.g., suspect has a gun; hands move; multiple officers). David underscores that the mere presence of a gun doesn’t equal legal justification for deadly force unless a direct, imminent threat is perceived.
    • “The existence of a gun is not the same thing as permission to shoot.” (David, 08:17)
    • Even with confusion (e.g. gun goes off accidentally), proving criminal intent is difficult, and acquittal is likely unless conduct is egregious.

• Criminal vs. Civil Liability in Federal Context:

  • Criminal prosecution of federal officers is next to impossible due to immunity.
  • Civil remedies (like Section 1983 for state actors) don't apply to federal agents; victims have severely limited recourse.

    “There are situations where I feel like criminal liability would be too much, but civil liability would be very appropriate, but civil liability isn't an option.”
    (David, 12:18)

• Bottom Line Distinction:

  • If the Preddy shooting involved state officers, the case would likely go to trial (tough to convict, but plausible). With federal officers, immunity shields them from both civil and criminal action unless acts are well beyond the pale.

2. Fourth Amendment and ICE: Warrant Issues & Remedies

(start ~20:15)

Guest: Prof. Orin Kerr (Stanford Law)

• Judicial vs. Administrative Warrants:

  • Judicial Warrant: Signed by a neutral, detached magistrate (search or arrest).
  • Administrative Warrant: Issued internally by the executive branch (e.g., immigration orders); not generally understood to satisfy Fourth Amendment requirements for home entry.

    “The traditional understanding has been, well, that's sort of nice within the executive branch, but that doesn't answer the fourth amendment question.”
    (Orin Kerr, 21:42)

• Historical and Precedent Framework:

  • Refers to Payton v. New York (1980): Requires a judicial arrest warrant to enter a home for an arrest.
  • Limited, ambiguous circuit precedent; only isolated district court rulings and a split 8th Circuit en banc opinion.

• Supreme Court’s Likely Stance:

  • Most lower courts would likely require a judicial warrant. Supreme Court unlikely to take up a case soon or expand administrative warrant power to allow home entries.

    “I suspect most lower courts would say, listen, Payton versus New York is pretty clear. You need a judicial warrant.”
    (Orin Kerr, 27:56)

• Remedies for Violations:

  • Exclusionary rule weak—person (the arrestee) can rarely be suppressed as "evidence,” so illegal home entry yields little benefit for the individual.
  • Bivens actions (civil suits against federal officers) are nearly extinct due to recent Supreme Court narrowing.

    “So the answer may be due to limits on the remedy. There's not much you can do.”
    (Orin Kerr, 28:46)

• Prospective Relief (Injunctions):

  • Broad, forward-looking injunctions for Fourth Amendment violations are extremely rare. Supreme Court precedent (City of L.A. v. Lyons) demands proof of likely future harm for standing—almost always lacking.
    • “What you're describing is pretty close to City of Los Angeles vs. Lyons… Supreme Court says, well, you can't get an injunction against unconstitutional chokeholds because you haven't shown that you're going to be subject to one… in the future.”
      (Orin Kerr, 33:13)

• Systemic Critique:

  • Both hosts and Prof. Kerr underscore a troubling lack of remedies for federal constitutional violations—“That’s what happens when you don’t have remedies.” (Kerr, 31:45)

3. Redistricting and Racial Gerrymandering: Texas vs. California

(start ~42:00)

• Background: The Redistricting Arms Race:

  • Texas and California both engaged in mid-cycle redistricting, with each state accused of manipulating districts for partisan ends using racial data.
    • “What's good for the goose is good for the gander, y'all.” (Sarah, 43:47)

• Judge Ken Lee’s Fiery Dissent (California):

  • Lee condemns “racial spoils system” and direct use of race in drawing lines, citing evidence from the mapmaker's public statements.

    “It is a sordid business, this divvying us up by race… California sullied its hands with this sordid business…”
    (citing Chief Justice Roberts, reading Lee dissent, 44:00)

• David’s Analysis:

  • Acknowledges drawing lines based on race is constitutionally dubious—“both states are pretty obviously messing with the lines on the basis of race.”
  • But Supreme Court is eager to avoid redistricting:

    “The Supreme Court does not want to be in the redistricting business. It just plainly doesn't want to be.” (David, 49:35)

• Sarah: Realpolitik Prediction:

  • The Court is likely to keep out of redistricting disputes, except in extreme or clear-cut disenfranchisement cases.

    “In 2026, you have a Supreme Court that does not want to be in the redistricting business. They're like, this is just not our problem because you guys keep running to us with your political problems…”
    (Sarah, 48:02)

4. Listener Segment: Lawyer Career Advice for 9-year-old Claire

(starts 51:05)

• Claire’s Letter & Community Responses:
  • Claire asks what makes a good lawyer and how to prepare as a kid.
  • Community responses stress organization, detail orientation, empathy, and genuine relationships over raw intelligence or showy debate skill.
    • “Most of being a good lawyer is being a lawyer that is always prepared... that sounds very easy, but for a lot of people it is very, very hard…” (Sean Trende, 52:13 - read by Sarah)
    • “This is a job about making friends and understanding people, even the people you are arguing against. A good lawyer is a good listener.” (Andrew Fleischman, summarized at 55:38)
    • “There are many different ways of being a lawyer... what will be rarer and rarer is someone who knows people genuinely and broadly, not followers on Insta or X. Real vibrant relationships who inform who you are.” (unattributed advice, 59:00)
  • David shares his most impactful legal moment stemmed not from talent, but “grit and attention to detail” (53:30).

Notable Quotes & Memorable Moments (with Timestamps)

• “The existence of a gun is not the same thing as permission to shoot.” (David, 08:17)
• “There are situations where I feel like criminal liability would be too much, but civil liability would be very appropriate, but civil liability isn’t an option.” (David, 12:18)
• “If you want to see a state prosecution of this officer… It’s not a road bump. It’s not a speed bump… It’s like Trump’s border wall you have to cross.” (David, 15:54)
• “The traditional understanding has been, well, that's sort of nice within the executive branch, but that doesn't answer the fourth amendment question.” (Orin Kerr, 21:42)
• “That’s what happens when you don’t have a lot of remedies.” (Orin Kerr, 31:45)
• “A good lawyer is a good listener. Amen, Andrew, because I got this very wrong... It could not be more wrong.”* (Sarah, espousing Andrew Fleischman’s advice, 56:35)*
• “Claire, there are many different ways of being a lawyer, like how a driver can drive a truck or a bus or a big rig. The work I do is wonderful. I sue the government for a living to get it to obey the Constitution.” (Timothy Sandifer, 58:30, read by Sarah)

Timestamps for Key Segments

• 05:09 — Comparing Goode/Preddy ICE shootings: legal differences
• 06:16 — Mortal threat element & video analysis (David)
• 08:17 — Use-of-force hypotheticals
• 12:18 — Criminal vs. civil liability for federal officers
• 13:21 — Would a case go to trial if officer was state, not federal?
• 20:15 — Fourth Amendment deep dive with Prof. Orin Kerr
• 21:07 — Judicial vs. Administrative warrants explained
• 27:56 — Likelihood of Supreme Court involvement
• 28:46 — Remedies (or lack thereof) for constitutional violations
• 33:13 — Prospective relief (injunctions) and its limitations
• 42:00 — California redistricting: setup and opinions
• 44:00 — Judge Ken Lee’s dissent read aloud
• 49:35 — Supreme Court’s reluctance on partisan gerrymandering
• 51:05 — Listener segment: Claire’s letter & community advice
• 52:13 — Sean Trende on what makes a good lawyer
• 55:38 — David on preparation and attention to detail
• 56:35 — Andrew Fleischman’s advice (empathy and listening)
• 58:30 — Timothy Sandifer’s letter (suing government, law as a tool for freedom)
• 59:00 — Importance of building real, broad relationships

Conclusion

This episode is a comprehensive exploration of why holding federal agents accountable for lethal force is next to impossible under current law, how the Fourth Amendment’s theoretical protections fail to deliver real remedies, and why redistricting remains a swamp the courts are eager to avoid. The listener advice section provides a heartening finale, reminding us that caring, grit, and understanding set the best lawyers apart.

For those seeking to understand federal police accountability, constitutional remedies, and the real-world messiness of partisan redistricting—and anyone looking for genuine career wisdom from the legal trenches—this episode is a must-listen.