Minnesota Prosecutors Face Uphill Battle If They Charge Feds In Fatal Shootings

If Minnesota officials try to prosecute the federal agents who recently killed two people in Minneapolis, they’ll face steep obstacles from a century-old Supreme Court precedent — one that helped sink a similar case just a few years ago.

Minnesota officials have not explicitly said they will bring criminal charges against ICE and Border Patrol agents responsible for the deaths of Renee Good and Alex Pretti, but Mary Moriarty, the top local prosecutor in Minneapolis, has opened homicide investigations into both shootings. And Minnesota Attorney General Keith Ellison has strongly pushed back on claims that federal agents cannot be prosecuted.

“There is no exemption for federal officers. Nobody gets to commit a crime in Minnesota and be unaccountable for it,” Ellison said on cable news Tuesday night.

But state prosecutors would face significant hurdles.

The 2017 shooting of Bijan Ghaisar by two U.S. Park Police officers in a Northern Virginia neighborhood — and the protracted legal battles that followed — may be the best preview of what Minnesota officials can expect if they pursue criminal charges against federal immigration agents. And the same legal theory that stymied Virginia’s prosecution may also block Minnesota’s.

“It immediately popped into my mind this is potentially going to be a thing that has to happen in state courts,” Fairfax County Commonwealth’s Attorney Steve Descano told POLITICO. “I immediately thought about the Ghaisar case and all of the different standards and all of the procedural hoops people are going to have to go through if they want to bring state charges.”

The FBI investigated the 2017 shooting for two years, but ultimately the Justice Department declined to charge the officers. Following that announcement, Fairfax County prosecutors launched their own criminal investigation but quickly ran into a non-cooperative Justice Department.

Agents who investigated the shooting were not allowed to testify before the Fairfax County grand jury, and the department did not turn over all investigative materials until after the officers had been indicted.

The DOJ said in 2020 that it would not cooperate with Virginia prosecutors because of the possibility that the department would be called to defend the officers in court, according to a letter from then-assistant attorney general for the civil rights division Eric Dreiband.

“It is the longstanding position of the United States that a federal officer may not be prosecuted by a State for actions undertaken in the course of performing the officer’s official duties, when the officer had an objectively reasonable basis to believe that the officer’s actions were necessary to fulfil the officer’s duties,” he added in the letter.

Justice Department spokespeople did not respond to questions about whether that remains the department's position.

Lawyers for the Park Police officers in the 2017 case argued that the state’s charges — manslaughter and reckless use of a firearm — should be dismissed under a legal doctrine known as Supremacy Clause immunity, which the Supreme Court established in 1890. If a federal officer is indicted by a state for “an act which he was authorized to do by the law of the United States” where he “did no more than what was necessary and proper for him to do,” the officer cannot be prosecuted, the Supreme Court said.

A federal judge dismissed the charges against the Park Police officers on those grounds. Virginia appealed the ruling, but dropped the case in 2022 at the direction of newly-elected Republican attorney general Jason Miyares.

Jonathan Fahey, the defense lawyer who made the Supremacy Clause immunity argument in that case, told POLITICO he believes any Minnesota prosecution of the agents who killed Good and Pretti would end similarly.

“The immunity issue should break the same way because they’re in the course of their duties and these events happened,” Fahey said. “Really the only time, at least in my interpretation, where it would not apply would be a situation where there’s an agent that just goes off on a lark and does something like robs a liquor store or something that just has nothing to do with what they’re supposed to be doing.”

However, the infrequent nature of such cases and the age of the controlling Supreme Court precedent has contributed to disagreement on the scope of the immunity and the manner in which judges should evaluate cases where it is invoked.

“The district court [in Ghaisar’s case] did what a lot of district courts do in these circumstances, which is to weigh the evidence itself and decide as a matter of fact … that the shooting was justified,” said Northern Kentucky University law professor Michael Mannheimer. “And that’s not what they’re supposed to be doing.”

“They’re supposed to be determining whether any reasonable jury could find that the shooting was unjustified,” Mannheimer said. And if the answer is yes, then the so-called Supremacy Clause immunity is denied and it should go to trial.”

While other cases involving the immunity have percolated through the appeals courts in the past 136 years, none has yet reached the Supreme Court.

That may finally change.

Local prosecutors from around the country this week announced the formation of a coalition committed to “hold federal officials accountable when they exceed their lawful authority.” Descano and Moriarty are founding members of the group.

“Whether it's through Minneapolis or through anything else, I would not be surprised if in the next couple of years we start to get some clarity from the Supreme Court on the contours of Supremacy Clause immunity,” Descano said.