Yes, States May Prosecute ICE Agents for Misconduct

Mary Moriarty, the attorney for Hennepin County, Minnesota, announced this week that her office will investigate alleged crimes committed by federal immigration enforcement agents, including alleged misconduct by Border Patrol commander Greg Bovino during the recent federal immigration crackdown in Minnesota. “We will investigate and pursue charging where appropriate,” Moriarty declared at a press conference, “and we will continue to seek collaboration with local law enforcement wherever needed.”

In response, the Department of Homeland Security (DHS) declared that “what these States are trying to do is unlawful and they know it.” According to the DHS statement, “federal officials acting in the course of their duties are immune from liability under state law.”

But Moriarty’s investigation actually stands on much stronger legal grounds than the DHS statement might lead you to think. As I’ve previously noted, the U.S. Supreme Court’s 1906 decision in Drury v. Lewis “allowed a state court to weigh murder charges filed by local officials against a U.S. soldier over the killing of a man suspected of stealing copper from a federal arsenal in Pennsylvania.” The upshot of that decision was that “even if the soldier was doing his job by chasing down the suspect, the state court still had jurisdiction if the lawfulness of the soldier’s use of force against the suspect ‘was open to dispute on the evidence.’” The decision in Drury v. Lewis is a far cry from the kind of blanket immunity from state prosecution that the DHS is now claiming for federal agents.

If state criminal charges are ultimately filed against federal immigration agents, I would not be surprised if the U.S. Supreme Court eventually took an interest in the case, given the sweeping immunity claims that will no doubt be proffered in court by the federal government.

“Sounds a little bit like President Lyndon Johnson going into Vietnam, doesn’t it?”

Those are not the words that you want to read in the context of a U.S. president trying to justify a rapidly expanding foreign war.

Yet according to Politico, they are the words of an unnamed Republican member of Congress, who spoke anonymously in order to complain about President Donald Trump’s shifting case for the Iran War. As Reason‘s Matthew Petti recently observed, such complaints are warranted: “Trump and his team can’t get their story straight on why they started this war, how long they plan to fight it, and whether they’ll put boots on the ground.” Indeed, as the foreign policy reporter Laura Rozen noted yesterday, U.S. estimates for the war’s length have now “gone from days to week to four weeks to four to five weeks to eight weeks in 100 hours.”

If only there were a branch of government composed of elected representatives whose sworn constitutional duties included holding a formal vote on the wisdom of going to war before the nation actually went to war. But who ever heard of a system like that?

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