J.D. Vance (3:14)

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 well.

Ailsa Chang (3:25)

Some legal experts have pushed back on that point about absolute immunity. David Cole is a law professor at Georgetown University and the former national legal director at the American Civil Liberties Union. Welcome.

David Cole (3:37)

Thanks for having me.

Ailsa Chang (3:39)

Well, thanks for being with us. I want to start with the vice president's comments there. Do federal agents have so called absolute immunity at the federal level for crimes they commit while on duty?

David Cole (3:50)

Absolutely not. And the vice president should know better. Having gone to law school. No one is above the law. Federal agents go into a state and start committing crimes, including murdering people, they are liable to the state to the same extent as everyone else with some exceptions, but they are not absolutely immune.

Ailsa Chang (4:13)

Okay. Well, in the meantime, as the federal government investigates this case, as they say they're doing, can we just bring up some words that Todd Blanch, the Justice Department's deputy attorney general, has already said? He said, quote, there is currently no basis for a criminal civil rights investig. So I'm just a little confused. Where does that leave this federal investigation if they've already concluded there's no basis for a criminal civil rights investigation?

David Cole (4:38)

Well, I think this is a real problem when the government is investigating itself and when the top level of the government has made clear not just Todd Blanche, but President Trump, that they don't want any accountability for this individual, that they are backing this individual no matter what, you can't have a legitimate investigation. Who's going to trust the results of the government investigating itself when the top folks have all said before the investigation is concluded, nothing wrong happened here?

Ailsa Chang (5:11)

And when we're talking about state law, a federal agent can be prosecuted for violating state law, correct?

David Cole (5:17)

Absolutely.

Ailsa Chang (5:18)

So what is happening on that level? If the federal government saying they're doing an investigation, what about potential violations of state law?

David Cole (5:27)

Well, the state has the prerogative to investigate. Ordinarily, the federal government would cooperate in that investigation, but the state has the right to investigate. The state has the right to prosecute. And the only immunity that the officer would have is if he could demonstrate that his actions were necessary and proper to carrying out his federal function. And, you know, I think that would be hard on the facts that we have seen on video to say this was necessary.

Ailsa Chang (5:59)

Assuming that no criminal charges are eventually filed relating to this case of Renee Macklin Goode, what recourse would be available under civil law. Talk about who could file a civil complaint against any of the federal agents involved in this case.

David Cole (6:14)

Well, her survivors could sue the officer under a doctrine called Bivens that allows individuals to sue federal agents for violations of their constitutional rights in limited circumstances. But violations of the Fourth Amendment, which is what a unjustified use of force is, have been recognized as a permissible ground for bringing a civil lawsuit against the officer. And you can also bring an action under the Federal Tort Claims act against the federal government itself for the action.

Ailsa Chang (6:50)

Okay. Well, as we're looking ahead as both the federal government and state officials are looking into the killing of Renee Macklingood, what are you going to be watching for?

David Cole (7:01)

You know, I think whenever you've got a police killing that is caught on video, widely shared, what's most important is that it be dealt with fairly and justly. Because if people see that government officials are able to kill citizens without accountability, you lose trust in the law enforcement system. And when we lose trust in law enforcement, very, very bad things happen. One is that people can take the streets and can engage in violence themselves because they are so outraged at the government for failing to hold its own officials accountable. And you see that, you know, across the world. But short of that, when they lose faith in law enforcement, they are less likely to cooperate with law enforcement. They're less likely to serve as jurors, as witnesses, to call the police, to engage with officers. And the enforcement of law is largely dependent on our cooperation, not on the baton and the gun.

Ailsa Chang (8:15)

David Cole is a law professor at Georgetown University. Thank you very much.

David Cole (8:20)

Thank you.

Ailsa Chang (8:22)

This episode was produced by Katherine Fink. It was edited by Christopher Intagliata. And our executive producer is Sami Yeniken. It's consider this from npr. I'm Ailsa Chang.

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