Calls for accountability over feds’ deadly use of force in Minneapolis have not relented. Here’s why that’s complicated
By Andy Rose, CNN
(CNN) — The killings of anti-ICE protesters Renee Good and Alex Pretti prompted outrage in Minneapolis, both for their deaths and the immediate response of federal officials to call both terrorists.
The political backlash that resulted lowered the temperature from the Trump administration – with even the president himself saying, “Maybe we could use a little bit of a softer touch” – along with seesawing promises from federal officials over how they would investigate the deaths.
But looming is the question of whether the federal immigration officers who pulled the triggers in both cases actually broke the law, a question that will come down to complicated issues that are much harder to define than the outrage that prompted calls for accountability. Any criminal or civil case will revolve around the legal standards around use of force and what was in those officers’ minds as they pulled the trigger.
“Whenever we’re talking about use of force, it’s not like there’s a single rule that we apply,” said Seth Stoughton, a criminal justice professor at the University of South Carolina School of Law and former police officer. “There are a number of different rules.”
Courts must determine what an officer thought when pulling the trigger
Under a standard established by the Supreme Court nearly four decades ago, shooting a suspect – even one who is unarmed – does not violate the Constitution if the officer reasonably thought the actions of the suspect presented “imminent danger of death or serious physical injury.”
“The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight,” Justice William Rehnquist wrote in the Graham v. Connor decision in 1989.
To figure out how much danger the officer perceived at the time of a shooting requires evidence, says Alex Reinert, director of the Center for Rights and Justice at the Cardozo School of Law.
“You’re going to need as much evidence as you can about what was happening in that space and time,” Reinert told CNN. “You’re going to need videos, any eyewitness statements, anything that could best illustrate the officer’s perspective in the moment.”
While that is the standard that would be considered in a civil case, local investigators are also looking into whether any state laws were violated.
In the immediate aftermath of Good’s shooting, the head of Minnesota’s Bureau of Criminal Apprehension said being cut off from that kind of information could be fatal to its own investigation of Jonathan Ross, the ICE officer who shot her.
“Full access to evidence, witnesses and information is necessary to meet the investigative standard that Minnesota law and the public demands; without it, we cannot do so,” said BCA Superintendent Drew Evans.
But by the time of Pretti’s killing – and with public anger rising – the tone of state officials hardened, promising a serious inquiry, whatever the challenges.
“Minnesota’s justice system will have the last word on this,” Gov. Tim Walz said January 24. “It must have the last word.”
Local investigators and prosecutors have not said what state charges they might consider in these cases. Vice President JD Vance appeared to argue there could be no state prosecution of a federal agent.
“You have a federal law enforcement official engaging in federal law enforcement action – that’s a federal issue. That guy is protected by absolute immunity,” Vance said in a January 8 news conference at the White House shortly after Good’s shooting.
Legal experts scoffed at the claim, and Reinert said any suspect who gets charged with a crime in Minnesota would normally be extradited to face the allegations there.
“I would expect the same to happen here if we are a nation governed by the rule of law,” Reinert said. “If that doesn’t happen, then that will be a different challenge to overcome.”
Supreme Court has been ‘sympathetic’ to officers
Last year in the case Barnes v. Felix, the Supreme Court said unanimously that in a civil lawsuit alleging excessive force, all the circumstances leading up to a law enforcement shooting must be considered, not just how the officer felt at the moment the trigger was pulled, and there is no time limit.
That means in the Pretti shooting, the defense could point out he had been involved in a violent clash with immigration officers 11 days before he was killed.
It also means in the Good shooting, a judge could consider whether Ross’ assessment of the threat may have been affected by his vehicle stop of a suspect six months earlier, where video showed he was dragged down the street and injured.
“If the officers could step out of the way of the car and that would be just as safe and effective as shooting, or maybe even safer and more effective than shooting, then that could play into this determination of whether the use of force was reasonable,” said Stoughton.
The Barnes case, which involved an officer who climbed onto the running board of a suspect’s vehicle and fatally shot him as he tried to drive away, has some parallels to the death of Good, where video shows Ross firing into the vehicle.
It also shows the tough audience which may be faced if a case ever gets to the conservative-dominated Supreme Court.
A concurring opinion written by Justice Brett Kavanaugh and cosigned by three other justices showed sympathy toward officers confronting a suspect inside a vehicle who is driving away.
“The point here is that when a driver abruptly pulls away during a traffic stop, an officer has no particularly good or safe options,” Kavanaugh wrote.
“The Supreme Court’s doctrine with respect to officer use of force is, in general, very sympathetic,” said Reinert.
Law enforcement reform has touched many police departments, but not ICE
Past killings of people by law enforcement in the Minneapolis area – including George Floyd, Daunte Wright and Philando Castile – prompted the most fervent calls for reform in use of force training in the past 25 years.
The city of Minneapolis agreed to a court-supervised slate of reforms as part of a deal with the Justice Department in the waning days of the Biden administration. Five months later, it was scuttled by the Trump administration, although the city has promised to continue reforms.
“We will implement every reform outlined in the consent decree because accountability isn’t optional,” Mayor Jacob Frey said in May.
The Minneapolis police chief says the difference between their policies on dealing with protesters and what federal officers have been doing is immediately clear.
“Some of the things that are happening are not right,” Chief Brian O’Hara told CNN’s Shimon Prokupecz. “And then you see, you see these videos over and over again … it’s certainly not the way we train police.”
Border czar Tom Homan, the new leader of Operation Metro Surge in Minnesota, promised last week to focus their attention away from protesters and back onto immigrants – especially those with criminal records.
“We are not surrendering the president’s mission in immigration enforcement,” Homan said. “Let’s make that clear. Prioritization of criminal aliens doesn’t mean that we forget about everybody else.”
While the Supreme Court has established its own standard of “reasonableness” for use of force, that doesn’t prevent state and local governments from making tougher rules.
In Washington state, some of the most sweeping police reforms were passed in the wake of George Floyd’s murder, including requiring recruits in all departments across the state to get the same standard use of force training. The man in charge of the program says it is critical that law enforcement not see the people they encounter as the enemy.
“Officers must remain mindful that they derive their authority from the community, and unreasonable force degrades the legitimacy of that authority,” said Richard Peterson, use of force training manager for the state’s Criminal Justice Training Commission.
Before there was consistent training across more than 300 law enforcement agencies in Washington, it was hard to hold officers to a consistent “reasonable” standard when many of them had very different training programs, Peterson told CNN.
“In the past, people would just teach you tactics or moves but wouldn’t really understand their legal authority. So, we had to switch that way of thinking,” he said.
Critics of actions taken by immigration officers – particularly Border Patrol agents – have argued they’re not trained for what they now face in major US cities compared to regular police officers.
“The Border Patrol is absolutely, without question, the wrong fit to police in an urban area,” said former Customs and Border Protection commissioner Gil Kerlikowske, who served during the Obama administration.
The Trump administration insists its immigration forces are well prepared for its task – now armed with $75 billion in funding, through 2029.
“Many of our agents have backgrounds in the military or law enforcement, and Border Patrol agents receive extensive federal law enforcement training at (Federal Law Enforcement Training Centers) just as ICE officers do,” a DHS spokesperson said. “The disgusting attempts by the media to say these agents are not trained to enforce the law is shameful and laughable.”
It is unclear if use of force training at the Federal Law Enforcement Training Centers has changed since President Trump’s second inauguration, but the division has confirmed reprioritizing a “surge” of training for more than 10,000 new immigration personnel, compressing training time – cutting it in half from 16 down to eight weeks.
No matter what is in the training sessions or policy manual, Stoughton said the most powerful message officers receive is from the top. Homan’s promise to operate in a way that is “safer, more efficient, by the book” contrasts with a president who has said agents “are allowed to do whatever the hell they want” to belligerent protesters and an ICE director who bragged the administration has “taken the handcuffs off the cops.”
“It doesn’t really matter what the policy says on the books. What matters is the policy that is enforced by supervisors,” Stoughton said. “What matters is the message that agents and officers get from their supervisors about whether trained behavior is going to be rewarded or whether it’s going to be disparaged on the street in the field.”
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