🥊 ICE agents should lawyer up
Prosecuting Jonathan Ross under Minnesota law is just the beginning.
This week, we’ve got new ideas for how to put rogue federal officials in jail…because it’s not theoretical anymore. A teaser:
The crimes before Renee Nicole Good was shot dead
How Governor Walz can go on offense
Minnesota’s legislature should subpoena Kristi Noem
Charging MAGA trolls for spreading disinfo on Renee Good
But first, let’s talk about the lie at the center of it all.
Here’s renowned legal scholar J.D. Vance’s take on Jonathan Ross, the ICE agent who shot Renee Good:
“That guy’s protected by absolute immunity. He was doing his job.”
And here, by contrast, is the U.S. Court of Appeals for the Ninth Circuit:
“To be entitled to immunity…the defendant must show two elements: first, the act must have been within the scope of official authority; second, the defendant must have honestly and reasonably believed the act to have been necessary and proper under the circumstances.”
J.D. might have lost the second prong of the immunity test in his couch cushions, but the law is clear: Ross can be prosecuted under state criminal law if his actions were “unnecessary or improper” — even while “doing his job.”
So ask yourself: If a masked ICE agent shoots an unarmed woman in the face three times — a woman who is in a car, trying to drive away from that agent — are his actions necessary and proper? When his colleague prevented a doctor from coming to her aid, was that necessary and proper?
And don’t stop there. How “proper” do these sound?
Shooting a praying pastor in the head with pepper balls.
Throwing flash grenades and zip-tying children in an apartment.
Sandwiching a sedan with kids inside between a pickup truck and SUV.
Putting teenagers (and adults) in federally-banned chokeholds.
Shooting so much tear gas that residents living near an ICE facility can’t breathe.
That list isn’t hypothetical. Every one of those incidents happened in the last year. And not a single ICE agent involved has been charged under state criminal law.
That’s not just a miscarriage of justice — it’s a standing invitation to violence. A message of impunity broadcast to ICE agents nationwide. A message that led to Renee Good’s death.
Yes, state prosecutions of federal officials have been rare in the past. But in the past, the federal government wasn’t deploying hoards of masked, highly armed, untrained officers to roam the streets of American communities. We aren’t living in the past. The facts on the ground have changed, and so our response must change too.
But here’s the crucial point: Federal immunity doctrine doesn’t have to change to hold ICE agents criminally accountable under state law.
A consensus is growing around this understanding. As we detailed just before the holidays, it was the basis for a state prosecution of FBI sniper Lon Horiuchi for his role in the Ruby Ridge standoff in Idaho – and it’s time for a few more states to road test it.
Reporting in Minnesota is already discussing the possibility of charging Jonathan Ross. But Ross should be the beginning, not the end. From shootings in Portland and Chicago to assaults in Massachusetts and California, ICE agents are committing acts that open them up to prosecution. Elected officials across the county need to realize the powers they have to hold ICE agents accountable — and they need to act.
We’ve got some ideas on how.
THE PUNCH LIST
Are you a state AG? Investigate whether ICE agents are breaking criminal law — and not just when they murder citizens. Yes, homicide is illegal under state law. But so are aggravated battery, false imprisonment, and kidnapping. Local prosecutors and state AGs can charge ICE agents with these crimes if they didn’t honestly and reasonably believe that their actions were necessary and proper.
Are you Governor Tim Walz? Launch a “Rogue Federal Agents Commission” to investigate the death of Renee Good and release its findings to the public. Jonathan Ross should face a jury. But the rules and verdicts of a court should not confine what the public learns about what happened in Minneapolis. Governor Walz can help by appointing a “Rogue Federal Agents Commission” to investigate the facts and federal policy decisions surrounding Renee Good’s death (and other concerning ICE incidents in the state). Appoint a prominent retired police leader to head it up. Ask the state legislature to give it subpoena power. And release its findings to the public.
Been racially profiled by ICE? Bring a converse-1983 lawsuit. Some state laws allow residents to sue federal officials for violating their constitutional rights. (👋 California, Illinois, and New Jersey.) So when a federal agent pulls a U.S. citizen from their bed because of the color of their skin, that’s grounds for a converse-1983 lawsuit (it’s a legal theory, not a sneaker). And the agents involved could be on the hook for money damages. Are these lawsuits easy to win? No. But they can be won, and would make violating the Constitution more expensive.
Are you Mary Moriarty? Prosecute the liars. Kristi Noem keeps lying about Nicole Good. While Good’s family may not be able to sue her for those lies (that type of immunity is well-established), civil defamation lawsuits aren’t the only game in town. At least, not in Minnesota where it’s a crime to knowingly defame someone. And while First Amendment die-hards may bristle at the mention of criminal defamation, such laws are most justified when they provide the only means of accountability for lies that touch on matters of public concern — like, where a federal official is apparently trying to shut down investigations into the shooting of a U.S. citizen.
Have a law degree? Get familiar with the Federal Tort Claims Act. The FTCA allows individuals to recover damages from the federal government when federal employees commit torts. Yes, murder counts, but so does using excessive force or destroying property. The law has its limits, but it allows petitioners to build a factual record and put rogue federal officials in the spotlight.
Did an ICE agent assault you on video? Were you dragged out of your workplace into a van and left bleeding in a parking lot miles away? The FTCA is for you, too.
☎️ Have an FTCA claim? We can find a lawyer to litigate it. ☎️
Are you in the Minnesota legislature? Send Kristi Noem and Greg Bovino subpoenas. Across the country, state legislatures have broad authority to subpoena witnesses, documents, and records to support their legislative mandates — including in Minnesota. If the U.S. Congress won’t perform appropriate oversight, state elected officials should. Sure, Noem and Bovino will fight the subpoenas. But it’s a fight worth having.
FIGHTING FIRE WITH FIRE
🥊 The Empire State strikes back. Responding to the situation in Minnesota, New York Governor Kathy Hochul came out in support of expanded legal options for New Yorkers harmed by ICE. In her state of the state address today, she introduced new converse-1983 legislation that would allow New Yorkers to sue federal agents over civil rights violations in state court.
🥊 Philly issues an early warning: FAFO. Philadelphia isn’t waiting for a crisis. District Attorney Larry Krasner warned that ICE agents or National Guard members who commit crimes in the city will be charged and held accountable to the fullest extent of the law.
🥊 Minnesota isn’t the only state investigating ICE. Last week, Oregon AG Dan Rayfield announced that state investigators were opening their own investigation into the shooting of two people by an ICE agent in Portland last week. This came after strong words from Oregon Rep. Janelle Bynum, who exhorted ICE to “Stop fucking with us.”
Counter Punch is a collaboration between Evergreen Legal and Salt River Valley Project — two organizations that believe punching back is the policy playbook this moment demands. It’s how we fight a rigged system, make courage contagious, and deliver for people against the leaders holding them down.