Brenna Gadar (3:40)

They do not have immunity. That is that broad. Federal officers do have some immunity, but it is not absolute immunity for things that they do on the job. They still have to comply with federal laws. They still have to act in a reasonable way in carrying out their duties and not violate people's rights.

Hanna Rosen (3:58)

If Minnesota decides they want to charge this specific shooter with a crime and the federal government has already decided he didn't do anything wrong, what happens? How does that unfold?

Brenna Gadar (4:10)

So the state, or in this case, it would likely be Hennepin county. Prosecutors could file criminal charges against the officer involved if they think they have enough evidence there. And then that officer would likely claim federal immunity and try to get the case moved to federal court and try to get the charges thrown out based on claims of federal immunity. And from there, it would just depend on what the federal court decided of whether the case could proceed. And if it did, then state and local prosecutors would go ahead and take that case to trial in federal court for a state law crime.

Hanna Rosen (4:43)

So this is a gray area. It's like, there's a lot of details to be hashed out in a situation like this. Right? And is it the kind of thing that would get adjudicated for years, or is it fairly clear, you know, they put out a warrant for the shooter's arrest? Like, how does it unfold in general?

Brenna Gadar (4:59)

We have seen some cases take years to resolve on this immunity issue. For example, the 1992 Ruby Ridge incident where a federal sniper shot and killed an unarmed woman. That took place in 1992. And it wasn't until 2001 that the 9th Circuit ultimately ruled that that case could go ahead and that that officer didn't necessarily have immunity from the state criminal prosecution in that. So these are not easy cases. And I don't want to overstate the ability of states to win these cases. We have seen repeatedly that federal courts will throw out charges if the federal courts think that the officer is acting reasonably and carrying out their federal duties in a reasonable way. But states have succeeded in getting these cases to trial in cases where the facts were sufficiently disputed. And the federal court agreed that it wasn't clear that the officer was acting with lawful force. So that's really the big hurdle here, is if the state can show that there is enough question around the reasonableness of this officer's actions in order to get over that immunity hurdle, Right.

Hanna Rosen (6:10)

And as you've watched the administration respond to this particular case, have you seen them kind of preempt some of these arguments? Cuz they're speaking in very specific language about force, the correct use of force, all this kind of stuff.

Brenna Gadar (6:24)

This administration is first of all trying to say that states don't even have the power to bring these types of cases, which is just flatly wrong based on this long history of states bringing this exact type of case. And the federal government is definitely trying to spin the narrative in a certain way so that the officer would be able to more easily claim immunity. But it's important to note that this would ultimately be a decision in federal court, and it wouldn't be the federal administration officials who have been speaking about this being the ones who are making that determination.

Hanna Rosen (6:58)

Right. So they can spin a public narrative, but it doesn't necessarily affect or determine what happens in the actual court.

Brenna Gadar (7:04)

Exactly.

Hanna Rosen (7:05)

I guess I have a fundamental question, which is why is the law designed this way? Like, why is it important for states to be able to hold the federal government accountable in certain cases?

Brenna Gadar (7:15)

Yeah. So this idea of dual sovereignty and the checks and balances that come with that is baked into how our country is designed. So at the founding, there was this idea that if the federal government overstepped on people's rights, the states would be there to check the federal government and vice versa. And that was really seen as foundational to protecting people's rights and guarding against tyranny and abuse from the federal government or state governments. Throughout history, these cases have come up most frequently during periods of more friction between the states and the federal government. Some of the times where we've seen this come up include the Prohibition era, where there was pretty intense and violent federal enforcement of Prohibition laws, and states were charging federal officers with violating various state criminal laws like manslaughter, murder, assault, in carrying out those actions. Other times, we've seen states more actively pushing back on the enforcement of federal laws, such as when the Fugitive Slave act was in existence. We saw a number of states, including Wisconsin, charging U.S. marshals with kidnapping for capturing previously enslaved people. And in some of those cases, the federal courts were quite quick to throw out those charges because the federal officers were acting lawfully under federal law, but the states were nevertheless using that as a tool to push back on those federal actions. And then conversely, we saw during periods of desegregation, some states pushing back on federal government efforts to integrate schools and enforce desegregation policies.

Hanna Rosen (9:06)

So I have heard the administration put out statements to State officials just sort of warning them against taking state action?

Brenna Gadar (9:13)

Yes, there have been multiple statements from federal officials threatening to charge state and local officials who are considering charges against federal officers to charge them with federal crimes like obstruction, harboring aliens, conspiring to impede federal officers, or seditious conspiracy. We've seen these from US Deputy Attorney General Todd Blanche, as well as Stephen Miller and Attorney General Pam Bondi. These statements really upend the traditional dynamic in these cases, where it's typically up to the federal courts to decide whether a state is overstepping in its prosecution. And that's the check and balance that we have in this system. I think the goal of these threats is to stop state and local officials from pursuing these types of cases. And I think it's possible that federal officials could follow up on those threats. I think it's highly unlikely that they would ultimately succeed in court if state and local officials are really just carrying out their jobs. But that doesn't mean that federal officials couldn't try to bring those cases.

Hanna Rosen (10:18)

It's interesting because with law enforcement actions, at least most recently, it's been the opposite. It's been federal government putting pressure on states to hold local police departments accountable, like in George Floyd's death, for example. And now we have this inversion, like the state's trying to put a check on federal officers. How does that inversion change the power dynamic here?

Brenna Gadar (10:39)

I think one difficult aspect of it is that it's not something that we are super familiar with in recent decades. And so I think it's just unfamiliar to people that states actually have this power and have this role, and that that is a proper role for states to play. And then I think the other way it impacts it is that there are dynamics about the investigation process that are flipped, where instead of concerns about a state withholding information from federal investigators, that is now flipped as well, where there's concerns about federal investigators withholding information from state investigators.

Hanna Rosen (11:16)

Looking back at the history, is there a case, a moment, an instance, which gives you hope about this situation where something or someone or some state has risen to the occasion in a way that we can look to now and think, oh, that's the model.

Brenna Gadar (11:30)

There are several cases where federal courts have recognized that federal officers do not have absolute immunity and that even where the facts are sufficiently disputed, the case can go ahead? So I would specifically, specifically point to the U.S. supreme Court deciding in a 1906 case where two federal soldiers shot and killed a man who was they believed was stealing from federal property. And we've seen this in other cases, too, where if the facts are sufficiently in dispute and there's a version of them that seems to suggest that the officer was just not acting reasonably, those cases can go ahead even if the officer ultimately wins at trial. That immunity step, I think, is really important for getting the case over that hurdle and to a trial and recognizing that it doesn't have to be that the facts are all predetermined. It can be enough that there is this debate over what the officer did was reasonable.

Hanna Rosen (12:31)

I think what's challenging about this particular moment is that the federal government didn't just forego investigating whether the shooting was justified. Now they seem to be opening an investigation into Becca Goode, the widow of Renee Goode. So what do you make of all that? The federal government's just absolute definitive stance.

Brenna Gadar (12:50)

It is really unprecedented to see that type of extreme defense of an officer before watching the whole process play out and gathering all the facts. And I think it is a point that really underscores how important it is to have states protecting their residents as well, because if you have one level of government failing at that and violating people's rights, you really would not have an option if you didn't have the state there. And so I think this really highlights the importance of that role. And I think seeing if that actually is going to be an effective method of accountability is really important for the future of the country.

Hanna Rosen (13:38)

Well, Brenna, thank you so much for explaining this all to us and its implications.

Brenna Gadar (13:43)

Thank you for having me.

Hanna Rosen (13:47)

So, in short, no, federal agents such as ICE officers do not have absolute immunity, despite what the Trump administration says. States can prosecute federal officers, although we're not used to seeing that lately, and it sounds like it's a long road. So does the average ICE officer on the streets of Minneapolis think they're immune? And how does that affect their behavior? After the break, we go inside the Department of Homeland Security. We talk to Nick Miroff, Atlantic staff writer who covers immigration. That's in a minute.

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Brenna Gadar (14:54)

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Hanna Rosen (15:02)

Nick, welcome back to the show.

Nick Miroff (15:03)

Good to be back with you.

Hanna Rosen (15:05)

So it's already been an eventful year for ICE and dhs. And then came last week, hours after Renee Goode was killed. We all saw those videos circulating about the shooting. And instead of the usual pledges to investigate that we would expect. Homeland Security Secretary Christine Ohm defended the shooting, called Good's actions an act of domestic terrorism. For someone who's followed these agencies for years, what did you make of the administration's response to what happened?

Nick Miroff (15:33)

I think it's a sign of the knee jerk defensive posture that they are in. It goes hand in hand with the aggressive deployment of these officers and agents in these cities with marching orders to, you know, I mean, let's think about the F around and find out ethos of our foreign policy adventures in the current moment. I think it's also being applied in a domestic context, and there is a diminishing patience with public pushback, with protest tactics.

Hanna Rosen (16:07)

And when a mob of agitators that were harassing them all day with the.

Nick Miroff (16:11)

Idea that officers and agents are going to be restrained and are going to try to avoid engaging directly with the.

Hanna Rosen (16:18)

Protests, this appears as an attempt to kill or to cause bodily harm to agents.

Nick Miroff (16:24)

And so when she immediately leapt to, you know, defend Officer Ross's decisions, an act of domestic terrorism, I saw that as an eagerness to both send a kind of political signal to the President's base, but also a signal to the broader DHS workforce, which includes ice, that this White House and this administration is basically going to defend you no matter what you do.

Hanna Rosen (16:53)

So that's the administration's position. What are you hearing from people at ICE and dhs, like, are they leaning into this fight? Are they with the administration either at the leadership level or rank and file? Can you tell?

Nick Miroff (17:06)

Well, you know, these videos were like a Rorschach test for the country and our politics. And it should, you know, it's not surprising that that's also true within the ICE workforce. It's not like I've done a, you know, a broad poll, but I have tried to ask almost everybody who I can think of what they saw. And it ranges from, I've had very senior ICE officials who are not softies by any means tell me that this was just straight up murder and that Officer Ross was way out of line and needs to be held accountable in a way that sends a real signal to the rest of the, the workforce. But I think that I would say that to generalize, most of the ICE officials that I heard from had a kind of a more nuanced view and felt like once that vehicle was coming at Officer Ross that he could be found to have made a reasonable decision to fire in self defense and that most of the people I spoke to said that he made a very risky decision and putting himself in front of that vehicle with its engine on was inherently dangerous. And some of the folks I spoke to have heard that he within the Minneapolis field office had had a reputation for being really like, gung ho. One person put it euphemistically that he was very enthusiastic about his job, but he was a guy who was clearly highly trained and was really doing his job aggressively. The incident in June in which he was very seriously injured similarly involved taking some risks, some tactics that are generally like discouraged. In this case, you know, he was stopping this individual and he shattered the window and then he reached into the vehicle and he ends up getting dragged and all cut up on his arm. It's not hard to think that that incident must have played into his mindset when he was approaching Goode. But you know, it's like, if you've had that happen to you recently, like to go and stand in front of a vehicle like that again is a very dangero posture to take.

Hanna Rosen (19:17)

Before you knew anything about the shooter, like before we even knew his name, would you have guessed it was one of the new recruits? Cuz you've written a lot about how ISIS tried to staff up quickly. Like, were you surprised to learn that this was actually a veteran officer?

Nick Miroff (19:31)

I was surprised. I mean, my first thought was like, oh, wow, is this one of the new hires that they just, you know, rush through the academy? And so to see that Officer Ross is not only, I mean, he's not only like a 10 year veteran of ICE, he's a member of the Special Response Team, which is their tactical unit. That's the most highly trained. So they are trained to be in more confrontational and riskier situations. You know, he's not like some case officer who's been pushed out onto the street with a gun and is out of their element. I mean, he is used to being in tense confrontational situations like this. He would have practiced these kinds of scenarios many times. And before that, you know, he was a border patrol agent, he was a Iraq War veteran. I mean, this is a guy who's been in military or law enforcement service his entire career and has had to go through any number of training exercises in which use of force policies would be addressed.

Hanna Rosen (20:28)

So how do you make sense of that? The Minneapolis chief of police recently, when he was criticizing ISIS actions, referred to that June injury to Officer Ross and whether the agency was making sure he wouldn't behave unsafely in similar situations. So that's maybe one theory out there about what happened. Do you have another theory? I mean, you just described him as kind of prepared.

Nick Miroff (20:50)

I mean, the interpretation that makes sense to me, that I've discussed with some sources who are just, again, don't have actual information about the investigation, but are observing, you know, trying to formulate, you know, a version of what could have happened based on the videos is that they were preparing to maybe arrest Renee Goode and her partner for obstruction. And so, as you know, you see that he pulls out his phone and he's like going around the vehicle recording her license plate.

Hanna Rosen (21:18)

Okay, we don't change our plates every morning, just so you know.

Nick Miroff (21:22)

And then, you know, at the moment when he seems to sort of complete the circumnavigation of the vehicle, that's when she's simultaneously, you know, hearing from her partner to drive, grabbing the passenger side handle while you have another ICE officer approaching, telling her to get the f out of the car, out of the car, get out of the fucking car. And then she starts, you know, turning the wheel and hits the gas. And it's possible to know, was he looking at his phone? Was he, what was he looking at, right, and what it was, you know, and all of that is going to come out in the investigation. But, you know, I think these things are entirely split second decisions. And he, you know, based on what we've seen from the video, seemed like he was pretty antagonized and was in a pretty aggressive mindset, you know, based on just his conduct in the 40 odd seconds. So, you know, it's really going to come down to like, was it a reasonable decision to start to open fire once that vehicle was rolling? And so again, a lot of the ICE officers I've talked to about this think it, you know, it probably was and we could end up where it.

Hanna Rosen (22:29)

Was or wasn't it was.

Nick Miroff (22:31)

And they think, you know, you could end up with a kind of situation where he will be faulted for putting himself in a dangerous situation, but he wouldn't be held criminally liable for killing Renee Goode because the vehicle was coming at him and he had a reasonable fear that, you know, he could be killed or injured.

Hanna Rosen (22:49)

So there's the details of this case and then there's the administration's response, which is a reflexive defense of this officer. And then there's this week in which things seem to be amping up in Minneapolis. Like, we've seen videos of ICE agents breaking a car window, shoving a city councilman. How do you think the administration response is affecting how ICE officers are behaving on the streets? Does it embolden them? Are they worried? What's your sense of that?

Nick Miroff (23:17)

I think it emboldens them. I think when they see other administration officials with this kind of unqualified defense of whatever they're doing and an investigation that is trying to criminalize Renee Goode and her partner, turning the focus of the attention to them, you know, I think that that undoubtedly sends a signal to continue to do what they're doing, to not give any ground to protesters or to public officials in Minnesota. And what we saw in Chicago in the late summer and fall was not dissimilar. They shot and killed a guy who wouldn't comply with their orders in his car.

Brenna Gadar (23:56)

It happened during a traffic stop in Frank. According to the Department of Homeland Security, the man resisted arrest and dragged the officer.

Nick Miroff (24:04)

They shot a protester, Marimara Martinez, who was in her vehicle five times.

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The Department of Homeland Security says the woman was one of several people using.

Brenna Gadar (24:13)

Their vehicles to box in agents and.

Nick Miroff (24:16)

Then tried to charge her with, you know, federal crime, ultimately dropping the charges. But again, we saw protesters and agents and officers in these intense confrontations in the street. We saw them pulling their guns. We saw them shooting people. But, you know, once the evidence made its way into courtrooms and it started to go badly for the administration, the administration kind of pulled back. And we're at the stage right now where, you know, it's too early to say what their response will be once evidence involving the shooting and other incidents is introduced into court. But it doesn't seem like this administration is going to back down from street level protests or from public officials in Minneapolis, you know, dropping F bombs at press conferences.

Hanna Rosen (25:00)

Okay, so we spoke to an attorney who told us that despite the federal government saying, we have your back, it's not actually true. States can prosecute ICE officers or they have some tools to do that. What do you think the rank and file ICE officers believe? Do you think they believe they're immune? Do they know this?

Nick Miroff (25:18)

I don't know. I. I mean, I've heard that. But what is an example of a state successfully prosecuting a federal law enforcement officer in recent years based on a use of force incident of this kind? I mean, everybody I asked about this told me that these cases are transferred into federal court and that it's extremely rare for state or local jurisdictions to successfully bring charges against a federal law enforcement officer accused of wrongdoing, well, in the course of their duties.

Hanna Rosen (25:48)

So I guess there's two things here. It's definitely possible, but maybe it hasn't happened in recent history, so it's not prime in their minds. The bigger thing, though, is the things that you're describing. Like me as an average citizen, I look at ice, I think, oh, ICE had a mandate to find undocumented immigrants. What you and I are talking about here is ICE shot an American citizen or ICE going after an American citizen. That is very, very, very different. Do you see it as different? Like, do you see ICE as evolving into a very different role than what it initially started as, or what one would think ICE is?

Nick Miroff (26:29)

Absolutely. I mean, like, just to be clear, like, there is no precedent for what we're seeing right now where the Border Patrol and ICE officers are in the streets of American cities, in neighborhoods, pulling cars over, confronting protesters, zooming around in unmarked cars with masks on. I mean, this is not what these agencies were created to do. And so at the root of all of this is the Trump administration's quest for a million deportations a year, a mass deportation campaign that is going to be on this kind of happen in this episodic rolling basis in blue Democratic run cities, and a desire to have imagery of confrontation in which they can have this political fight over immigration, the future of this country. Left wing protesters have all of these things play out on social media, on television. I think that they think it is winning politics for them, and I think that they think that this is winning policy for them. This is what Stephen Miller has been building up to his entire political career. We didn't see it on this kind of level in the first Trump administration because there were checks, there were safeguards. The border was still the focus. But now that the border is basically closed and all of the energy and the resources and attention are on this deportation campaign, these confrontations are what they've been building up to for a long time.

Hanna Rosen (28:01)

So where this goes, Trump is not going to be president forever. It does feel right now like the Department of Homeland Security has become much more openly political than we're used to a federal department being. So do the DHS people worry about what happens when Trump is not in office?

Nick Miroff (28:23)

So this is something that I'm writing about, you know, this week, you know, and I think that the main takeaway is that the Department of Homeland Security has gotten way off of its foundational mission. But at the core of it is this unresolved conflict in our politics in our country about immigration enforcement and the role of immigration and immigrants in American society. And there are two completely divergent visions right now that are clashing in a way we've never seen.

Hanna Rosen (28:56)

Thank you, Nick. Thanks for joining us.

Nick Miroff (28:58)

My pleasure. Always good to be with you.

Hanna Rosen (29:02)

This episode of Radio Atlantic was produced by Rosie Hughes and Janae West. It was edited by Kevin Townsend and fact checked by Alex Marogno Porto. Rob Smirciak engineered and composed original music. Claudina Baid is the executive producer of audio at the Atlantic, and Andrea Valdez is our managing editor. Listeners, if you enjoy the show, you can support our work and the work of all Atlantic journalists when you subscribe to The Atlantic. At theatlantic.com listener, I'm Hanna Rosen. Thank you for listening.