Can Rene Good's Family Sue the Ice Officer Who Shot Her?

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1:20And when you're a Sinesta Travel Pass member, staying at America's Best Value In means earning points toward free nights, upgrades, and more every time you stay. Go to Sinesta.com to book your stay and unlock the best rates with Sinesta Travel Pass. Here today, Rome tomorrow. Join now at Sinesta.com. Terms and conditions apply. This is Bloomberg Law with June Grosso from Bloomberg Radio. 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.

1:58The rhetoric started on the very day that Renee Good was shot to death by an ICE officer. Vice President J.D. Vance held a news conference and declared that the ICE officer couldn't be touched for his actions. That message has been reinforced by others in the Trump administration. In fact, on Tuesday, the Department of Homeland Security posted a clip of White House Deputy Chief Stephen Miller amplifying that message. To all ICE officers, you have federal immunity in the conduct of your duties. And anybody who lays a hand on you or tries to stop you or tries to obstruct you is committing a felony.

2:38You have immunity to perform your duties. And no one, no city official, no state official, no illegal alien, no leftist agitator or domestic insurrectionist can prevent you from fulfilling your legal obligations and duties. So are they right? Will that ICE officer face any consequences for killing the mother of three? Joining me to answer that question is Anya Bidwell, a senior attorney at the Institute for Justice. Anya, are these Trump administration officials right? Do these ICE officers have absolute immunity? I hate to say that they are right, but unfortunately, they are very close to being right.

3:22and there are exceedingly fewer routes to sue federal officials. It's been happening for a long time. It's not just a Trump administration invention, but what they're doing now is really exposing this gap in accountability between state and local officials. For example, Derek Chauvin, who murdered George Floyd, and federal officials like those ICE agents who killed Renee Goode. So they are very close to being right. And the reason they're out there talking about this, because, you know, before the Biden administration, the first Trump administration, the Bush administration, the Obama administration, they weren't going around and talking about absolute immunity.

4:05The reason they're talking about it here now is because they want those ICE agents to go out there and do their worst. And instead of de-escalating, instead of trying to keep the peace, they want them to be out there marching on the streets and scaring people. And so they're telling them, just so you guys know, there is nothing that can be done to you. There are, of course, some routes. And we should mention that Renee Good's family has already hired some civil rights lawyers. So said that he will file under the Federal Court Claims Act, probably. OK, so first of all, what about a lawsuit against the federal government, the family filing against ICE or DHS?

4:49Yes, that is the best route, even though it is riddled with complexity, as the lawyer who is representing Renee Good's family explained. It is riddled with complexity. It is not a really full vindication of anyone's rights, but it is the best route to accountability the way the law works now. You file a claim under the Federal Tort Claims Act, not against the officer who killed you or who hurt you, but against the United States government in that officer's stead. The statute originally was really intended for things like, you know, a USPS driver running over somebody like a negligence type of an act.

5:35And then somebody would file a claim with the agency and the agency would compensate for that negligent action. The statute is not a great fit for constitutional violations like these. And the problem with the statute, too, is that the government invariably invokes the so-called discretionary function immunity. So they basically say the officer was acting within the scope of his duty and he was exercising discretion in that he was making a choice between whether to turn right or left. And therefore, discretionary immunity applies. and even the federal government cannot be held accountable. So those suits are very hard, but it's still the best option, the FTCA route against the government itself.

6:23Can you think of a big case recently, or the last case where plaintiffs won using that route? That's a great question. There are no immediate cases that come to mind. What comes to my mind is actually the case we argued in front of the Supreme Court just last year, where there was a wrong house raid on an innocent family's home pre-dawn, even though there was an address on the mailbox right there in front of the house telling the officers that this was a wrong house to raid. And so the family sued the government for this wrong house raid. It was in Atlanta, Georgia, And the government basically argued you can't sue us because the officer exercised judgment and there is supremacy clause immunity and discretionary function immunity.

7:19And the case went all the way to the Supreme Court. And Justice Gorsuch even said, you'd think there would be a remedy, wouldn't you, for that kind of a raid? But he said the answer is not that simple. And the Supreme Court did not rule for the family. They remanded the case back for reconsideration. So this is pretty much like the most positive outcome is that we get to re-argue this case again years and years after this actual wrong house raid, and the family still has seen no justice. The problem then is that not too many lawyers even want to argue these cases because it takes years and years to get anywhere, as this example demonstrates.

8:03Yeah, I remember that case. So now let's talk about the route that is difficult, impossible, and that's suing the individual officer, suing the ICE agent here. Yes, that is impossible because they are ICE agents. And even in general, with any federal official, it's extremely difficult. So at the root of the problem is really congressional omission. After the Civil War, Congress passed a statute called Section 1983 to allow suits for the violation of the United States Constitution against state and local officials who essentially weren't complying with reconstruction and violating people's constitutional rights.

8:48At the time, you could sue federal government in state courts, and there was no fear that state courts would be easy on federal officials. If anything, state courts at the time were hostile to federal officials. So Congress wasn't worried about federal officials not getting proper treatment in state courts. So they didn't include them in this statute. They only included state and local officials. And that omission is now used by the Supreme Court as an excuse to deny any access to courts to plaintiffs whose violations happen to be conducted by federal officials. They're saying Section 1983 does not have federal officials in there.

9:33There isn't an analog like that for federal officials. And they say Congress should amend that statute, include federal officials in there, and then we will have no problem with people opening courthouse doors. But as long as federal officials are not part of that type of a statute, we're not going to open the courthouse doors. Now, on the other hand, there is a problem that circuit courts are interpreting another statute that Congress passed as prohibiting suits against federal officials in state courts, too. So that traditional remedy I told you about is also unavailable. So the way that the law stands today is that you turn to federal courts and the Supreme Court is telling you, you guys are not part of Section 1983.

10:23We can't do anything about it. And you go to state courts and they are basically saying, well, circuit courts so far have said that cases in state courts are unavailable. Though we do think that by far the best option right now is actually for states to pass their own statutes like that Section 1983 that Congress passed back in the day. And we as public interest lawyers, we have a really good argument to explain to the Supreme Court why that kind of route actually should be available. But this is something that's very new. We are encouraging states to pass these laws. And we feel very good about arguing that that's a proper route.

11:09If Congress is not going to do its job and it's not going to amend Section 1983 to include federal officials, then it's responsibility of every state to do so instead. Not once since 1980 has the Supreme Court allowed a Bivens action, which allows people to sue federal officers directly to go forward. Do you know why the court took that turn? Yes, that's exactly what I was talking about in terms of Section 1983 in excluding federal officials. So in the 70s, when this case Bivens was decided, the court didn't really think that a statute by Congress authorizing a right to sue was necessary. The court at the time thought, you know what, you could just sue directly under the Constitution.

11:56Just say my Fourth Amendment rights were violated. Here's my proof. And I demand a day in court. That was the attitude in the 70s. And then as we're going into the 80s, the court really led by Justice Scalia is championing this idea that federal courts are courts of limited jurisdiction. They should be very humble about the kind of cases that they can hear and that without authorization from Congress, they cannot really do anything. Their hands are tied. Right. And that's when they start pointing to that statute, Section 1983, and saying federal officials are not part of that statute. We can't just imply an authorization.

12:43We must see it in a text and we don't see it in the text. So there is nothing we can do. That really is starting to take shape in the 1980s. That's why earlier I said that it's not of Trump's administration's making, right? That really starts to take shape in the 1980s and kind of reaches into the 2000s where we're suing FBI officials for torture. That's when the court is really starting to say, you guys, we mean what we say. We need a statutory authorization. And then it really culminates in 2022 with the decision Egbert versus Boulay, where they basically say the door is all but shut. And frankly, Justice Gorsuch, and I kind of sympathize with that, he writes a concurrence and he says, we should just overturn Bivens so we don't give any false hope to anybody.

13:36And so everybody understands that you cannot sue federal officials in state court. For as long as we have Bivens on the books, some people are under the misapprehension that there is any kind of accountability, which actually there isn't. That's why the simplest thing to do is to amend Section 1983. Then the Supreme Court will say, fine, this is great. Now you can open the courthouse door. And short of that, it's states who should take action. Coming up next, how some states are fighting back. This is Bloomberg. This message is brought to you by Apple Card. Apple Card members can earn unlimited daily cash back on everyday purchases wherever they shop.

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16:08Sample prompts are for illustrative purposes only, not investment advice. All investing involves risk of loss. See complete disclosures at public.com slash disclosures. On the day that 37-year-old Renee Good was shot to death by an ICE officer, Vice President J.D. Vance declared with certainty that there would be no consequences for the officer. That guy is protected by absolute immunity. He was doing his job. The idea that Tim Walsh and a bunch of radicals in Minneapolis are going to go after and make this guy's life miserable because he was doing the job that he was asked to do is preposterous.

16:44The unprecedented thing is the idea that a local official can actually prosecute a federal official with absolute immunity. I've never seen anything like that. It would get tossed out by a judge. I've been talking to Anna Bidwell, a senior attorney at the Institute for Justice. So then, Anya, realistically, Vice President J.D. Vance and Trump aide Stephen Miller are correct in saying to the ICE officers, don't worry about what you do. You're protected. Exactly. It pains me to say this, but they are correct. And again, like I said, previous administrations didn't like to advertise that, right? Because it's kind of appalling that we can't sue federal officials.

17:27So they didn't talk about it, then we would go and litigate in court and they would make those arguments in court. This administration is happy to talk about it because they want to encourage ICE to go out there and do their worst, to not care about repercussions, to not de-escalate, to basically go out there and break all the constitutional guarantees because fundamentally there isn't a way to hold them to account. Now, the federal government, if it wanted to, could prosecute those officers. But does anybody here really believe that the federal government is actually going to do that? Instead of investigating Jonathan Ross, they are investigating the wife of Renee Good, right?

18:09So we are not counting on the federal government to step in here, the one meaningful mechanism. And when it comes to state prosecutions, there is another complication and another immunity that comes in. So states, generally speaking, cannot prosecute federal officials when federal officials are exercising their federal duties. So, again, the federal government doesn't even feel compelled to cooperate with the state government in this situation, doesn't even feel compelled to share the evidence because they also know that the state itself is really fundamentally unable to prosecute a federal officer.

18:46So that's where we are right now. And J.D. Vance and Stephen Miller are very comfortable going out there and telling ICE, you guys are good. There is nothing really that plaintiffs can do right now. So Minnesota, you know, they're going to try to do an investigation, right? I mean, is there a way, even if it's a loser way, is there a way for Minnesota to prosecute that ICE officer criminally? I would try. I would try. You know, again, if I'm a state, what I'm going to try to do at this point is, A, I'm going to work to pass a statute to allow suits for violations of federal constitution in my courts.

19:24and also I'm going to try to prosecute the officer. Now, immediately there will be a motion to dismiss filed. There will be arguments against it, but at least you are trying to get out there and try to do something. I would also try to just publicly even say, here's what we want to see, right? Some of it is public engagement. When you are a state, if we were to investigate, this is what we would want to see. These are the kind of things that would allow us to evaluate what took place here. Federal government, are you doing this or are you not doing this? States certainly can't just sit there and do nothing, but it's an uphill battle all the way.

20:04What is Illinois doing? Illinois is not the only state, but Illinois is the one that actually passed the law. And so DOJ is suing it over it right now. So there are several states. Illinois Illinois is the first one in the line of states. Closely behind are California, New York. We also have Colorado, Oregon, and Maryland who are looking to pass those statutes that allow people to sue for violations of the federal constitution in state courts. So Illinois was the first to get past the finish line. California just got its bill out of the Judiciary Committee this Tuesday, and many other states are working on that too.

20:52So they all kind of differ in the approaches that they're taking. Illinois took a bit more of a targeted approach with specifically talking about immigration enforcement. States like California and New York taking a more general approach and talking about just anybody who violates the United States Constitution should be held accountable. And that broader approach is actually less vulnerable to suits by the DOJ. So we are encouraging states to take that broader approach instead of singling out a particular agency or particular conduct. But we are very encouraged to see that states are starting to do this, at least some states.

21:35And Congress has introduced an act. Where is that? Yes, yes. Congress, this is the third time that Representative Hank Johnson introduced this bill. It's called the Bivens Act, referring back to that case and trying to codify that right in Section 1983 instead of just an implied right under the Fourth Amendment or other constitutional amendments. It's called the Bivens Act. Your listeners can just Google Hank Johnson, the Bivens Act, and it will come up and you'll see how simple the amendment is. It basically says agents who act under federal law should also be held accountable, just like those who act under state law.

22:15That's it. It's the simplest amendment. It would take Congress two minutes to pass it if they actually had the will to do it. And again, it's not just ICE officers. Right. I had somebody come to me last year where a gentleman was killed in an ATF raid. They were executing a warrant because he violated a gun show loophole. And again, it was a pre-dawn raid. The gentleman didn't know that anybody was coming. He's got a gun and he thinks somebody is about to come in and rob him and hurt his wife. So he's there with a gun and they shoot him and they kill him dead. Right. And Jim Jordan was outraged by this.

22:53And I call on Jim Jordan to say, let's pass this Bivens Act so the family who was hurt by the ATF could also have a day in court, like the family here who was hurt by ICE. So it's not a partisan issue, but right now it is being treated as one, and we don't really see much movement on the Bivens Act in Congress. Let's just say you could sue a federal officer. I mean, the federal officer would probably be indemnified, right, by the government? I mean, they wouldn't have to pay out of their own pocket anyway. Yes, that's what invariably happens. And it happens with state and local officials as well, that they have indemnification provisions and the governments invariably indemnify them.

23:36But at least then the officer is called out. His actions are analyzed. The family gets some answers about what happens, because these days they don't even feel like they need to explain themselves. And then that officer is on notice because he did cost money to the agency. Right. So there is some sort of accountability going forward, too. And the agencies are much more careful about how they hire because they know that problematic officers are going to cost them a lot of money. And in some situations, when the violations are outrageous, then the government basically says, you're on, you're on, we're not going to cover it.

24:14It all depends. But fundamentally, the important thing is that if you allow families to sue, then they don't carry the burden of the constitutional violation, right? that they are actually able to take control of the situation and get to discovery, figure out what happened and have the jury determine what it is that happened and who owns what. That's a very important thing to have that simply there isn't anything even close to that right now. And I want to mention that you've written a legal insight column for Bloomberg Law entitled, Renee Good's family can't sue under federal law. Just like in the op-ed, I just can't stop thinking about this, right, where what happened to George Floyd was absolutely horrific.

25:02And at least there was some sort of a mechanism, right, for the state to look into the actions of the officer and prosecute him and for the family to sue the municipality and say, you guys did wrong by us by hiring this guy and improperly training him. None of those options are available when it comes to federal officials. And that's something that really is not right. And you can see that kind of manifest itself in the way ICE acts, right? When Jonathan Ross shoots Renee Goode and then he calls her, that's the kind of thing that I think wouldn't happen if he knew that there would be some sort of repercussions to his actions.

25:49It's been great talking to you. Thanks so much. That's Anya Bidwell, a senior attorney at the Institute for Justice. So there's a lot of noise about AI, but time's too tight for more promises. So let's talk about results. At IBM, we work with our employees to integrate technology right into the systems they need. Now, a global workforce of 300 ,000 can use AI to fill their HR questions, resolving 94 % of common questions. Not noise, proof of how we can help companies get smarter by putting AI where it actually pays off, deep in the work that moves the business. Let's create smarter business. IBM.

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