Does ICE agent in Renee Good’s shooting have “absolute immunity” from state charges? Here’s what the law says.
The fatal shooting of Renee Good by an Immigration and Customs Enforcement agent in Minneapolis last week sets up a potential legal showdown between the state and federal government.
If the state were to indict the ICE agent, Jonathan Ross, on criminal charges, he could try to claim a form of immunity conferred by the Constitution. Vice President JD Vance raised this the day after the shooting, asserting that the officer was immune from prosecution because he’s a federal agent.
“That guy is protected by absolute immunity. He was doing his job,” Vance said. The Department of Homeland Security alleged that Good weaponized her vehicle, and said the officer acted in self-defense. However, local officials pointed to video of the shooting and raised doubts.
The FBI and Justice Department are leading the investigation into the shooting after the Minnesota Bureau of Criminal Apprehension withdrew from the federal probe, saying it didn’t have “complete access” to the case evidence.
Homeland Security Secretary Kristi Noem said Minnesota officials “don’t have any jurisdiction in this investigation.”
But Carolyn Shapiro, a law professor and co-director of the Institute on the Supreme Court of the United States at Chicago-Kent College of Law, told CBS News it’s “simply false” that the state lacks jurisdiction.
Shapiro, who previously served as Illinois’ solicitor general, said Minnesota has the authority to investigate and prosecute crimes committed in the state.
But any attempt to bring state criminal charges over Good’s death is likely to face legal obstacles arising from a claim of immunity under the Constitution’s Supremacy Clause.
What is Supremacy Clause immunity?
The Supremacy Clause, in Article VI of the Constitution, establishes federal law as supreme, superseding state law. It limits the ability of states to interfere with federal law through criminal prosecution. States may hold federal officials accountable for violating state law, unless state law conflicts with federal law; if there is a conflict, federal law prevails. But if state prosecutors have evidence federal officials acted in ways not related to their job duties or work policies, then state law prevails.
Federal officials may be prosecuted if they “acted beyond the scope of their duties, violated federal law, or behaved in an egregious or unwarranted manner,” Bryna Godar, an attorney at the State Democracy Research Institute at the University of Wisconsin Law School, wrote in a brief explainer.
The state is independently gathering its own evidence in the Good case. Hennepin County Attorney Mary Moriarty’s office has set up an evidence portal that has received a “substantial” number of submissions, she said in an interview Monday with CBS Minnesota.
Moriarty also said after the FBI took over sole authority of the investigation that her office has jurisdiction to review evidence and make a decision about charges because the shooting happened in Hennepin County.
If a state prosecutor obtains an indictment or files criminal charges against a federal officer, the officer has the right to have any potential state charges in the case heard in federal court. It’s at this point the officer might invoke immunity under the Supremacy Clause, says Robert McNamara, deputy litigation director for the Institute for Justice, a public interest law firm that litigates “to end widespread abuse of government powers.”
How could the Supremacy Clause immunity be used?
If charges were filed, Ross would likely appear before a federal judge and assert that he was invoking the doctrine, and that the actions he took in shooting Good were reasonable and necessary to fulfill his federal duties — a separate question from whether the shooting constituted a crime.
“That’s the doctrine that’s going to be at the center of the fight,” McNamara said.
The federal government would not be a party in this fight. The immunity battle would be waged between the agent, in this case Ross, and the state of Minnesota, although the feds could provide support by hiring a defense attorney or filing an amicus brief.
The court would have to answer two questions at that point, Seth W. Stoughton, a law professor at South Carolina School of Law, explained in an email to CBS News. First, was Ross acting within the scope of his duties, authorized by federal law? Second, was he performing his duties in a “necessary and proper” way?”
If the court determined the answer was “yes” to these questions, Ross could be granted immunity from the state prosecution, Stoughton said.
The case could then be dismissed.
If, however, the judge allowed the prosecution to proceed, it would remain in federal court with state laws applied.
Federal courts “have permitted state authorities to prosecute federal officers for using deadly force when they conclude that the force could have been unreasonable or excessive,” Stoughon said.
He cited a case from the early 1990s when an FBI sniper killed an unarmed woman during the standoff near Ruby Ridge. Idaho prosecutors charged the agent with involuntary manslaughter, and a federal court allowed it to proceed. (The case was later dropped by state prosecutors.)
States have criminally prosecuted federal officials since the early 1880s, with mixed results. Experts say Supremacy Clause immunity is a complex legal process most often used during times of heightened tensions between the states and the federal government.
If Ross was eventually convicted on state charges, he could not be pardoned by President Trump, Shapiro noted. The president has the power to pardon people only for federal offenses, not for state crimes.
Caroline Cummings
contributed to this report.
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