Do federal agents have 'absolute immunity?'

0:00Protests have erupted all across Minneapolis. This is after an Immigration and Customs Enforcement officer fatally shot a 37-year-old woman in her car last week. Some protesters have blown whistles as they confront ICE officers. Federal agents have responded by arresting some demonstrators, tackling and tear-gassing others. More than 2 ,000 federal immigration agents are now deployed in the Twin Cities area, with hundreds more expected this week. Meanwhile, the White House has continued to condemn the protests. All weekend long, you had agitators and violent American citizens out in the streets of Minneapolis protesting.

0:43Protesting what exactly? Speaking on Monday, White House Press Secretary Caroline Levitt also went on to defend Jonathan Ross. That's the ICE officer who shot and killed Renee Macklin Good during a confrontation with immigration agents. And this administration will continue to stand wholeheartedly by the brave men and women of ICE, including that officer in Minneapolis who was absolutely justified in using self-defense. Consider this. After last week's fatal shooting, what does accountability look like? Can a federal agent be prosecuted? Well, we put that question to a legal scholar.

1:25From NPR, I'm Elsa Chang.

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1:51It's Consider This from NPR. A federal investigation is underway after an Immigration and Customs Enforcement officer fatally shot a 37-year-old woman in Minneapolis last week. Meanwhile, the state of Minnesota is gathering its own evidence about the shooting after the FBI shut the state's investigative agency out of the case and declined to share federal evidence. As the facts of last week's deadly shooting remain disputed, there's also disagreement about what the law is. Here's Vice President J.D. Vance speaking from the White House last Thursday. The precedent here is very simple. You have a federal law enforcement official engaging in federal law enforcement action.

2:31That's a federal issue. That guy is protected by absolute immunity. He was doing his job. Well, 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. Thanks for having me. 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? Absolutely not. And the vice president should know better, having gone to law school.

3:07No 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. OK. 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 Blanche, the Justice Department's deputy attorney general, has already said? He said, quote, there is currently no basis for a criminal civil rights investigation. So I'm just a little confused. Because where does that leave this federal investigation if they've already concluded there's no basis for a criminal civil rights investigation?

3:50Well, 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? And when we're talking about state law, a federal agent can be prosecuted for violating state law, correct?

4:29Absolutely. So what is happening on that level? If the federal government is saying they're doing an investigation, what about potential violations of state law? 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 I think that would be hard on the facts that we have seen on video to say this was necessary.

5:11Assuming that no criminal charges are eventually filed relating to this case of Renee Macklin Good, 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. 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.

5:53And you can also bring an action under the Federal Tort Claims Act against the federal government itself for the action. Well, as we're looking ahead, as both the federal government and state officials are looking into the killing of Renee Macklinggood, what are you going to be watching for? 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.

6:48One 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 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. David Cole is a law professor at Georgetown University. Thank you very much.

7:32Thank you. This episode was produced by Catherine Fink. It was edited by Christopher Intagliata. And our executive producer is Sammy Yennegan.

7:45It's Consider This from NPR. I'm Elsa Chang.