Deborah Ramirez is co-director of the Center for Law, Equity and Race at Northeastern University School of Law.
Federal officials have potentially shut the door on whether ICE Agent Jonathan Ross will be held accountable for the killing by an Immigration and Customs Enforcement officer in Minneapolis of US citizen Renee Good on Jan. 7.
Ordinarily, when a federal agent shoots a civilian, the investigative protocol is clear: a joint state and federal criminal investigation is launched. After initially agreeing to a joint investigation, federal officials abruptly decided on Jan. 8 to bar Minnesota investigators from participating in the probe — effectively deciding that only federal investigators will gather evidence, sift through it, and determine whether there will be a prosecution.
State investigators are now blocked from accessing case materials, crime scene evidence, and investigative interviews. This is a remarkable and disturbing departure from customary cooperation between state and federal law enforcement.
Homeland Security Secretary Kristi Noem declared that the state of Minnesota has no jurisdiction to investigate the killing. Soon thereafter, Minnesota Attorney General Keith Ellison and Hennepin County Attorney Mary Moriarty announced a state-level effort to collect and preserve evidence linked to the fatal shooting and invited the public to share any relevant information.
While collecting evidence is a component of an investigation, it cannot replace a full, official state criminal investigation or an active grand jury investigation.
At this juncture, it is critical that Minnesota state authorities focus on a strategy for ensuring there is a full, professional state investigation into the killing of Good.
Federal law creates an unnecessarily high bar for the federal prosecution of Jonathan Ross, the ICE agent who shot Good, making federal prosecution extremely unlikely. The relevant federal statute, Section 242 of Title 18 of the US Code, requires the federal government to prove that Ross violated Good’s constitutional rights by acting “willfully” with specific intent. The federal government would have to prove that the defendant knew what he was doing was wrong, and he did it anyway. Mistakes, poor judgment, or fear do not meet the standard.
In contrast, Minnesota law would enable state prosecutors to charge Ross with second-degree manslaughter if they can prove “recklessness.” The relevant questions: Did Ross engage in behavior that involved a gross deviation from a standard of conduct that a law-abiding, reasonable law enforcement officer would engage in? Was he behaving in an egregious, unreasonable, and unauthorized way that caused Good’s death? Did his recklessness cause the death of Good? Since this is the most appropriate charge, the state should move forward immediately with an investigation of its own.
Contrary to ill-considered statements from Trump administration officials, neither the Supremacy Clause nor the immunity doctrine bars a state investigation at this early stage. Immunity shields federal actors for official actions only when they are performing authorized duties in a “necessary and proper” fashion. If Ross acted beyond the scope of his duties by violating federal law or by behaving in an egregious or unwarranted manner, the state prosecution against him can proceed. The issue will be: Was his conduct egregious, unreasonable, or unauthorized?
This will be resolved by a federal district court only after the state of Minnesota indicts Ross for manslaughter.But at this point, state officials must investigate whether Ross egregiously exceeded his authority. In addition, his claims of self-defense must be evaluated.
Careful exploration of complex questions, such as where the agent was located when shots were fired, why three shots were necessary, whether Good’s car was headed toward or away from Ross, and whether Ross had reason to fear for his life, would be greatly facilitated if state prosecutors could gain full access to Good’s car, the shell casings, and FBI witness transcripts. Such access should be granted immediately. But even if access is denied, the state can proceed with examining the numerous public videos and public witness statements already available. Moreover, the state should use its subpoena power, or, if necessary, file a motion to compel, to gain access to the car and shell casings. And, of course, state prosecutors should interview any relevant witnesses.
A state investigation will let the people of Minnesota know that there will be a full and exhaustive examination into the killing of Good.