Earlier this month, Illinois Governor JB Pritzker signed a bill that would, among other things, establish clearer and more severe civil liabilities for immigration agents and their collaborators violating state law by, for example, arresting people at or on their way to state courthouses without a judicial warrant. The bill was a response to the temporary siege of the federal “Midway Blitz” operation, which saw agents from multiple agencies, including heavily armed Border Patrol units, engaged in wanton, violent roundups and speech suppression.
It stopped short, however, of touching a notion Pritzker had first raised in mid-October: state and local prosecutors taking criminal action against Immigration and Customs Enforcement and other federal agents violating state law. Nonetheless, the idea of prosecutors bringing charges against immigration agents is slowly making its way into mainstream discourse as the Trump administration’s popularity craters and the full scope of its authoritarian designs increasingly comes into focus. Philadelphia District Attorney Larry Krasner had raised the issue all the way back in January, in the early days of Trump’s second term. This month, typically staid Massachusetts Representative Seth Moulton, after a visit to a local ICE detention facility, bluntly said, “The abuses of ICE need to be prosecuted.”
Stephen Miller has already tried to preempt this idea with the false claim that federal agents have blanket immunity. It is true that the exact scope and ability to hold them accountable is a matter unsettled in the law, but it is not a new conversation. In fact, as this has bubbled up again, I’ve been thinking of the first time I ever seriously discussed this issue, with Fordham Law professor and then-candidate for New York attorney general Zephyr Teachout, who made it a campaign plank at a time when it was seen as a pretty fringe position: the apex of the already marginal push to abolish ICE, a mantle that had been taken up by national figures like Alexandria Ocasio-Cortez.
More than seven years later, Teachout tells me that she got a lot of nasty emails about that push: “Frankly, Fox News picked up in opposition more than the Democratic Party picked it up in support. And I think that’s really unfortunate; not even the Democratic Party, just people who care about the law.”
As I muse to Teachout that a push for prosecution then might have prevented our lawless circumstances now—and that perhaps she was reading the tea leaves—she pushes back. “The question is why society doesn’t tend to think of ICE agent lawbreaking as lawbreaking. In some ways, that’s the real question. Not why were we thinking about it in 2018,” she said. “What is surreal is the way in which we’ve created, almost subconsciously, categories outside the law.”
There is a minefield of practical and legal questions about a bona fide effort to prosecute federal agents, which functionally is only going to happen at the state level in the near term (the Trump administration seems far more interested in, for example, attempting to prosecute political opponent Letitia James on manufactured charges than in holding itself accountable). There is nothing per se that makes federal agents immune from state laws, particularly if they are acting outside the reasonable scope of their duties.
That’s on the mind of David Seligman, a Colorado labor rights attorney now running for state attorney general, who has taken up Teachout’s mantle on the “prosecute ICE” question in the current moment. “One of the most important tools we have as a bulwark of our democracy is the independent authority of the states, not just to pass laws but also to enforce laws,” he said. “I think we need to make it clear to people participating in this project that they are not above the law, right?”
Seligman acknowledged that this approach is relatively untested, but insists that that’s more a marker of the extraordinary nature of the current crisis than one of unfeasibility. “We’re in sort of uncommon times, and I think that the reason that there isn’t a ton of precedent here is more to do with the fact that the times are uncommon and less to do with the legal complexities,” he said. In any case, “Trumpist lawyers … have constantly been pushing way more absurd legal arguments than this in order to punish people and retaliate against them, right? So, the suggestion that we somehow need to play nice with the Feds and Fed officers by ignoring clear state law requirements, I think, is just sort of absurd.”
The candidate pointed to a 2014 federal District Court decision in the case of Arizona v. Files, in which Arizona state prosecutors brought a case against a federal Fish & Wildlife Service officer named Russell Files for having trapped his neighbor’s Australian cattle dog, Zoey, after a dispute over the dog’s alleged aggression and defecation in Files’s yard. Files claimed immunity, arguing that trapping the dog was within the scope of his duties as a wildlife agent and he could not be prosecuted in state court over it.
For the most part, courts have held that a federal agent cannot, for example, drunk-drive and crash a personal vehicle and avoid local criminal liability because, naturally, that’s not something done under color of their federal authority. Yet the Files case is an interesting fact pattern because what Files did was, in isolation, within the general scope of his duties. He routinely set traps for animals as part of his job and had discussed setting a trap for Zoey with his supervisors.
Federal agents’ immunity from state prosecution when performing their duties dates all the way back to In re Neagle, an 1890 Supreme Court decision that blocked California’s attempt to prosecute a U.S. marshall who had shot and killed a man who’d tried to attack Justice Stephen J. Field. As the Eleventh Circuit neatly summarized it in a 2009 decision, the basic upshot of Neagle was that “an act cannot simultaneously be necessary to the execution of a duty under the laws of the United States and an offense to the laws of a state.”
However, District Judge Jack Zouhary ruled that Files could be prosecuted because the immunity extended only to functions “necessary and proper” for officers to undertake their duties, and Files could not credibly claim that trapping a neighbor’s dog in a clearly personal dispute fit the bill, even if he personally felt that the dog was a threat. “This Court must assess Files’ actions under the circumstances as they existed at the time of the trapping incident,” Zouhary wrote. “This Court determines, first, whether Files honestly believed the manner in which he set out to trap Zoey was reasonable and whether that honest belief was objectively reasonable. Files fails on both counts.” (He was nonetheless acquitted later.)
The same logic could be applied to federal agents engaged in immigration operations in which they, broadly speaking, have the authority to engage. Neagle and related case law is the reason that a city or state can’t, for example, prohibit agents from making immigration arrests on their territory, but are agents tear-gassing First Amendment–protected protesters really acting within the scope of their duties? Are agents warrantlessly entering homes to make immigration arrests using necessary and proper force and authority? It doesn’t seem like a huge leap to say that they are not.
Naturally, this is all theoretical. Files is a relatively niche situation, and one where the agent was motivated by personal animus. A state trying to prosecute agents who are carrying out what is pretty clearly administration policy, even if that policy runs beyond their lawful power, is another ballgame, and a completely untested legal theory. In order to test it, someone has to actually slap the cuffs on a federal agent, and someone has to give the order to proceed with that arrest. Are local cops going to arrest their federal counterparts? Are aggressive and heavily armed federal agents, who’ve been given carte blanche by the administration, going to allow themselves to be taken into custody? The White House, the Department of Justice, and the Department of Homeland Security—which have been all too happy to try to punish oppositional cities and states through everything from military deployments to withholding grants—will lose their minds. Who knows how they’d try to retaliate?
But perhaps it’s all a bit simpler than that. “Many of the people that I have talked to, who I think have been fairly cowardly, frankly, in the current context, it’s because they are playing a complicated game of chess,” said Teachout. She’s frustrated by all the realpolitik preventing action. “Why, in the interim eight years, is it a kind of triangulation? Fear? Is it a political fear of alienating some mythical suburban family that might automatically support sexual assault, battery, and other criminal activity by ICE agents. Like, what is it?”
Teachout concedes that something like placard abuse by federal agents, for example, is worth tamping down but probably not worth the complications of bringing them up on state charges. Nevertheless, she believes that something truly shattering to the civic psyche is occurring: “The consequences of this lawbreaking are so, so incredibly profound, it punches holes in the sense that it makes what civic freedoms we have all seem much more tenuous and unreal and unserious.”
The more that ICE’s abuses come to light, driving public disfavor against them, the more likely it is that we will arrive at a moment when prosecuting these wayward agents enters the realm of possibility. If there’s tricky legal terrain to traverse, those who believe that justice must be done should start mapping it now.
