Can Minnesota Prosecute an ICE Agent?

Do federal officials have “absolute immunity” from state criminal law? No.
But they do have a powerful defense described as the Supremacy Clause immunity.  This legal doctrine can block a state prosecution when a federal officer was acting within lawful federal duties and used only what was necessary and proper. See Lawfare for more details.

In this episode, former prosecutor Arthur Busch breaks down the real test courts apply, how cases can be removed from state court to federal court under the federal-officer removal statute, and what facts tend to decide these cases in practice. 

And one point that gets misstated constantly: a presidential pardon does not reach state crimes—so it cannot wipe out a state conviction. 

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Transcript

Arthur Busch: 0:00

Hello, this is Arthur Busch, and you're listening to Radio Free Flint. Thank you for joining us today. This is our podcast. Today we'll be joined by uh Sarah James and Vance Ellis, who will talk to us about the law as it relates to the prosecution of a federal agent or FBI agent, homeland security agent who might have engaged or been involved with a shooting that resulted in a homicide. So without any further ado, let's get to the story itself. In the American criminal justice system, the cameras lie, and when a bank gets robbed or a high profile shooting hits the news, it's the federal jackets you see first. The FBI or perhaps homeland security agents racing to the scene. They have FBI plastered across their blue jackets or maybe police labeled on the back of their outfits in tactical gear. The TV crews, of course, are tracking every step as if the case belongs to Washington DC. But any county prosecutor like myself who's been around a while knows the truth. In most of those cases, the performance is federal, but the prosecution is definitely local. The handoff happens quietly with a phone call or a backroom meeting, and the file lands on a state prosecutor's desk because that is where most all criminal cases in our country actually live. Now the performative cosplay by the feds misleads and hides some basic facts. One, ninety percent of all criminal prosecutions in America are brought by state and local prosecutors, not by the federal government. Two, federal courts handle only a tiny fraction of the nation's criminal caseload. That's about sixty to seventy thousand federal sentencings a year, and that's versus millions of state felony cases alone and many millions of misdemeanors. I want to talk to you about something you might not know unless you've been in the system, and that is the good old boy's rule. When it comes to state and local federal prosecutions, uh there's kind of a quiet agreement, and that goes something like this. The feds say we'll play local police and you do the prosecuting. The everyday work of deciding who gets charged with assault, homicide, or weapons offenses belongs to county prosecutors and state courts, even when the federal jackets fill the camera frame. And for decades there's been an unwritten rule of deference between the two systems. In cases that could be charged either way, such as bank robberies or drug conspiracies, even some civil rights assaults, such as a shooting by a police officer, state and federal prosecutors quietly decide who will take the case, and the other side stands down. That habit of courtesy has protected federal officers as much as it has streamlined justice. Nothing in the Constitution requires it. And the news media eats up this misleading narrative that all criminal law is largely the province of the federal government. That historically and practically is not now, nor has it ever been the case in practice. And another thing, the defining of who prosecutes criminal cases is not now, nor has it ever been defined by the president of the United States. Where the all powerful Feds image comes from, I believe, let's talk about that. First of all, I think it might come from media and pop culture, that is movies and TV that love the moment. When the feds sweep in, flash badges, do flashbang grenades, take over the crime scene, and sideline local police. It's dramatic, clear, easy to film, but it widely overstates how often that happens and how broad federal jurisdiction really is. Let's talk about jurisdiction. Federal agencies can operate nationwide and of course cross state lines, but on paper, their jurisdiction looks bigger even though state and local police handle almost all routine crime and community policing. So let's talk about the resources and the selectivity between the various levels of our government. So obviously the federal cases tend to be bigger, they're slower, and they're more resourced. That's because the cases generally are more complex conspiracies, white collar cases involving immigration, national security matters. So when the feds do show up, it feels like the big guns are around. Even though they are touching just a tiny fraction of the actual caseload. I think lastly, in terms of where we get this misimpression of what the federal government is doing in the field of criminal law and criminal prosecution and criminal justice, we need to look at the symbolisms that are portrayed on our screens every night on TV. Number one, the highly visible jackets, the press conferences, and the sh joint task force branding that feeds the sense that the federal agents are in charge, even when the charging decisions will ultimately be made quietly by a county or state prosecutor under state law. In other words, the all powerful federal cop is a powerful story, but the numbers and the actual jurisdictional lines, they still say this is mostly a state and local system, and federal agents are just one part of it. The media narratives about entertainment sometimes, and I can't say every case, are misleading. So let's look at the law which isn't entertainment, and perhaps maybe then uh I can make it more clear to you as to what uh what is what is actually going on in in real life. And hopefully that bursts the media's storyline because it's not doing a good service for the American people. In one recent case in the winter of 2026, the streets of Minneapolis held a familiar American scene. A woman was dead, a federal badge hangs in the balance, and Washington tells a whole state, Minnesota, to step aside. A federal officer fires the fatal shot. The president's people, President of the United States, insists the officer can't be touched by state law, as if federal now means above the criminal code. Well, let's look at this issue of whether there is or is an immunity in and in homicide, police involved homicide cases where um the state might prosecute. And to do that, I'm asking Sarah James, our correspondent, to come and help us explain a little more clearly uh what the state of the law is and what other people are saying about this situation.

Sarah James: 7:47

Michigan is listening. Attorney General Dana Nessel has warned that what ICE is doing in Minnesota looks like a federal agency, acting as if it is beyond accountability. I've not seen anything like what we're seeing right now in regard to how the federal government is handling their responsibilities involving immigration enforcement. It's really concerning to me. In a recent filing, she joined other state lawyers to describe how federal agents fatally shot one resident, Renee Good, seriously wounded others, and chaotically conducted unconstitutional stops and arrests, and how, because of the unlawful tactics used by ICE in Minnesota and across the country, families are afraid to visit their local food bank, kids miss school and doctor appointments, and crime victims are too scared to come forward because a federal agency has deliberately sown fear while acting as if it is above the law. Nessel has also said out loud what many officials only hint at. CBP and ICE agents do not enjoy total immunity from state prosecution, and I will do everything in my power to ensure that if they break our laws, they can be held accountable in our courts. Michigan's governor is pointing the same direction. We are witnessing unacceptable violations of Americans' safety, rights, and freedoms. No one should accept this. The violence must stop. Michiganders stand with Minnesotans as they exercise their First Amendment right to protest and make their voices heard peacefully, Governor Gretchen Whitmer said after the Minneapolis operation. A governor who says no one should accept this is not just offering sympathy. She is giving political cover to the prosecutors who might decide to act. On the ground, Michigan sheriffs are saying it plainly too. Genesee County Sheriff Chris Swanson, speaking about the Minnesota shooting, called it tragic and predictable and asked the question many viewers were already thinking was that decision to use deadly force the best decision? I don't think the American people think that, and I certainly don't think that. When a sheriff from Flint goes on national television to question whether a federal killing was necessary at all, he is also signaling that there are standards federal officers must meet, even when they cross a state line.

The Mitten Channel: 9:43

All of this brings the law into focus. The Supremacy Clause does give federal officers a shield in state prosecutions, but it is much narrower than the slogans from Washington suggest. Courts use a simple two-part test to decide if a federal officer can avoid state charges. First, was the officer actually doing something federal law authorized him to do? Second, was his conduct necessary and proper, meaning objectively reasonable, to carry out that lawful duty? If both answers are yes, a court can dismiss state charges. If either answer is no, the shield falls away and the case can go forward under state criminal law.

Sarah James: 10:19

Alright, how do we prove a case against a federal agent in state courts? For ice shootings, everything turns on how that test is applied. If an operation itself was lawful, that was serving a valid warrant or conducting a legitimate arrest, but the officer fired in a way that clearly violated federal use of force rules or the constitutional ban on excessive force, a state can then argue the shooting was not necessary or proper to any federal duty. And if there was no valid federal authority in the first place, no warrant, no probable cause, no unlawful basis for the stop or entry, the state can then argue the officer was not executing federal law at all. That is why legal experts keep saying there's no such thing as absolute immunity for ICE agents, even in a politically charged case.

Speaker: 11:19

All of this brings the law into focus. The Supremacy Clause does give federal officers a shield in state prosecutions, but it is much narrower than the slogans from Washington suggest. Courts use a simple two-part test to decide if a federal officer can avoid state charges. First, was the officer actually doing something federal law authorized him to do? Second, was his conduct necessary and proper, meaning objectively reasonable, to carry out that lawful duty? If both answers are yes, a court can dismiss state charges. If either answer is no, the shield falls away and the case can go forward under state criminal law.

Ellis Vance: 11:55

Absolute immunity. The George Floyd case proved that wrong. Minnesota, of course, has its own recent memory of holding an officer to account. After George Floyd was murdered on a Minneapolis street, it was state law, state charges, and a state jury that sent Derek Chauvin to prison. That verdict rested on Minnesota's definition of murder, not a federal civil rights statute, and no president could erase it. Today, when Minnesotans hear the phrase absolute immunity for an ice shooter on those same streets, they measure it against that experience. They remember that a local system, under enormous pressure, did manage to hold one officer accountable.

Arthur Busch: 12:29

Thank you, Ellis. Where does all this lead us now? In conclusion, I'd like to say it's not an easy answer in every situation. Having reviewed many, many dozens of officer-involved shootings, uh these are not easy calls, and they're not calls that everybody agrees with. But before you can make any call, you have to know what the law is. So here's my final challenge to the police community, to the legal community in America. We have a constitution at this point that's waiting for a few good men and women to step forward and do their duty for the Constitution and for history. Michigan officials are now asking whether they need to do the same if the pattern spreads. Nessel's insistence that federal immigration enforcement should not be should not make people afraid of our courts, and her promise that ICE and Border Patrol agents do not enjoy total immunity from state prosecutions are not academic points. They are a statement that the tools already exist. Governor Whitmer's warning about unacceptable violations of rights offers political backing if a Michigan prosecutor ever decides to test those tools in court. Genesee County Sheriff Swanson's public doubts about the necessity of deadly force sound like the opening lines of a cross examination. None of this guarantees an easy prosecution. The Supremacy Clause and the removal process give federal officers real advantages, and any state case against an ice chute would be a hard fought and difficult case. But the law does promise one thing. When a federal officer kills on state soil, someone other than the pres someone other than the president gets to ask the necessary question. Were you really doing your job? And did you really need to do that? Thank you.

Arthur Busch: 14:45

This has been Arthur Bush for Radio Free Flint. We hope you enjoy uh our podcast on the Mitten channel, and if you do, we ask you to like our channel, to follow it, to rate us especially, and uh to give us a line, uh send a comment or an email to radiofreeflint.media. We'd enjoy hearing from you. So for now, that's it. Have a good day, and thank you very much for listening again. Goodbye.