Are Federal Officials Immune From State Prosecution?

As the federal government carries out aggressive immigration raids in major cities across the U.S., state officials are facing off with the federal government over a centuries-old question: When can states prosecute federal officials for violating state criminal law?

A statement from former speaker Nancy Pelosi and California Rep. Kevin Mullin on Oct. 23 asserted that “state and local authorities may arrest federal agents if they break California law—and if they are convicted, the President cannot pardon them.” Illinois Gov. JB Pritzker has formed a commission to address “unlawful attacks” by Immigration and Customs Enforcement (ICE) officers. New York’s attorney general recently set up a portal for the public to share footage of ICE interactions, stating that the office is “committed to reviewing these reports and assessing any violations of law.” And local officials in San Francisco, Philadelphia, and Boston have stated that they will pursue legal action if federal officers break the law.

In response, several federal officials are threatening their own prosecutions of state and local officials and are asserting that ICE agents and other federal actors are immune from state prosecutions. In a letter to California officials, U.S. Deputy Attorney General Todd Blanche asserted that the U.S. Constitution’s Supremacy Clause “precludes a federal officer from being held on a state criminal charge where the alleged crime arose during the performance of his federal duties.” Meanwhile, Deputy Chief of Staff for Policy Stephen Miller told ICE officers in a TV interview that “you have federal immunity in the conduct of your duties” and that “anybody who lays a hand on you or tries to stop you or tries to obstruct you is committing a felony.” According to Blanche, Miller, and Attorney General Pam Bondi, state and local officials who seek to arrest federal agents could be charged with federal crimes like obstruction, “harboring aliens,” “conspiring to impede federal officers,” or “seditious conspiracy.”

Are these federal officials accurately stating the law?

In short, no. On the immunity question, federal officers are shielded from state criminal prosecution in some circumstances, but they do not have blanket immunity and never have. In fact, states have a long history of prosecuting federal actors for state crimes, stretching back to at least the early 1800s. Many of these cases arose amid high-tension flashpoints between the federal government and states, including in disputes over slavery, desegregation, and prohibition.

This state prosecutorial power does come with important constitutional limits. In cases where federal officials are acting reasonably and within the bounds of their federal duties, federal courts have held that state prosecutions cannot go ahead. The reason stems from the Constitution’s Supremacy Clause: If states were free to prosecute federal officials for lawfully and reasonably carrying out their duties, states could thwart the entire operations of the federal government. Importantly, however, the Supremacy Clause does not categorically immunize officials for actions carried out during the performance of federal duties, as Blanche and Miller have asserted. Rather, courts conduct a situation-specific inquiry into both the scope of the federal officer’s authorized duties and whether the officer’s actions were reasonable (or “necessary and proper”) in carrying out a federal duty.

Disputes over immunity traditionally play out within the federal officer’s criminal case—not in a tit-for-tat arrest of state officials who seek to prosecute federal actors, as Blanche, Bondi, and Miller are now threatening. Federal courts have long recognized an important role for state prosecutions in checking federal abuses of power. Subjecting the officials who bring those prosecutions to parallel criminal actions would raise significant federalism issues and mark a sharp departure from past practice.

The Scope of Federal Official Immunity

As a baseline, federal officials are not immune from prosecution for state crimes just because they committed the offense while on the job. Some state prosecutions of federal officials that have gone ahead include a manslaughter charge against a postal worker who hit and killed someone while delivering mail, murder charges against military members who shot and killed a man they believed was stealing copper fixtures, and murder charges against federal officers who killed a passenger when shooting their guns at a departing car they alleged was illegally transporting whiskey.

The Supreme Court has long emphasized that “[a]n employee of the United States does not secure a general immunity from state law while acting in the course of his employment.” So when a federal officer—be it an ICE agent or a postal worker—violates a state criminal law, they can potentially face prosecution. This could include charges for trespass, breaking and entering, kidnapping, assault, manslaughter, murder, or a host of other state-law crimes.

What happens next is where things get complicated. Generally, federal officers will seek to move their case into federal court. They will claim that they are immune from prosecution under the Supremacy Clause, and a federal court will decide whether the state’s prosecution can proceed. If it does proceed, it will typically play out in federal—not state—court, though state or local officials will still prosecute the case. And if the trial ultimately leads to a conviction, that conviction will be for a state—not federal—crime. This is an important point in state-federal conflicts because the president’s pardon power extends only to federal crimes, not state crimes. (For a more thorough analysis of the procedural elements, see this Lawfare article.)

Breaking down the immunity piece, federal officials prosecuted for state crimes generally claim that they are immune from prosecution under the Constitution’s Supremacy Clause. The Supremacy Clause provides that federal law is “the supreme Law of the Land” and overrides state law when the two conflict. Courts have interpreted this provision to preclude state prosecutions when federal officials are reasonably carrying out lawful federal duties. For example, in the foundational case on Supremacy Clause immunity from 1890, the Supreme Court concluded that California could not prosecute a U.S. Marshal for murder where the marshal, who was assigned to protect a U.S. Supreme Court justice, shot and killed an attacker. In other examples, the U.S. Court of Appeals for the Tenth Circuit in 2006 affirmed dismissal of a Wyoming trespassing prosecution against federal wildlife officers who accidentally entered private land while collaring wolves, and a federal district court in the 1960s ordered the dismissal of disorderly conduct charges against a U.S. Marshal for his actions quelling a segregationist riot at the University of Mississippi.

The theory behind Supremacy Clause immunity, as explained in the 2006 Tenth Circuit wolf-collaring opinion authored by then-Judge Michael McConnell, is that, “while state criminal law provides an important check against abuse of power by federal officials, the supremacy of federal law precludes the use of state prosecutorial power to frustrate the legitimate and reasonable exercise of federal authority.”

To strike this balance, federal courts have adopted a two-part test for Supremacy Clause immunity: The federal official’s actions must have been (a) authorized by federal law and (b) “necessary and proper” in fulfilling the official’s federal duties. In other words, if an officer’s actions are unauthorized, unlawful, unnecessary, or improper, the state prosecution poses no Supremacy Clause problem because it is not undermining the implementation of federal law.

In practice, the contours of this two-part test are often contested. The U.S. Supreme Court has not weighed in on Supremacy Clause immunity in more than 100 years, so the doctrine has been developed largely in lower federal courts.

On the first prong, there is debate over what degree of authorization is necessary—is it sufficient for the federal officer’s actions to fall broadly within the scope of their duties? Or must the officer be directly authorized to perform the specific act? On the second prong, courts typically ask whether the officer’s actions were reasonable. But there is debate over whether the reasonableness of the officer’s actions should be assessed objectively or should also take into account subjective considerations. For example, the Tenth Circuit held in the wolf-collaring case that “a federal officer is not entitled to Supremacy Clause immunity unless, in the course of performing an act which he is authorized to do under federal law, the agent had an objectively reasonable and well-founded basis to believe that his actions were necessary to fulfill his duties.” The court “le[ft] for another day the question whether that belief must be both subjectively and objectively reasonable.” Scholars have also advanced differing arguments for how broad or narrow Supremacy Clause immunity should be.

Thus, state prosecutions of federal actors tend to involve extensive debate over the exact framing and application of the immunity standard. In many cases, the federal officer may ultimately walk away with immunity. But not always. And, regardless of how broad or narrow this test is, the bottom line is that federal officials do not have—and have never had—blanket immunity from state prosecutions for actions taken while performing federal duties.

Federalism and Tit-for-Tat Arrests

Despite the long-established rule that federal actors who overstep their authority can face state criminal charges, U.S. Department of Justice and White House officials are now threatening to prosecute state and local officials who pursue such charges against federal officers. These threats mark a stark departure from past practice and the principles that underlie the state-federal balance.

While federal law is the “supreme Law of the Land,” states have long played a key role in checking federal abuses and overreach. As the Supreme Court has explained, this system of dual sovereignty is designed to “secure[] to citizens the liberties that derive from the diffusion of sovereign power” and “reduce the risk of tyranny and abuse from either front.”

Similarly, as Alexander Hamilton wrote in The Federalist No. 28 (and the U.S. Court of Appeals for the Ninth Circuit quoted in a later-vacated decision on Supremacy Clause immunity):

Power being almost always the rival of power, the general government will at times stand ready to check the usurpations of the state governments, and these will have the same disposition towards the general government․ If [the people’s] rights are invaded by either, they can make use of the other as the instrument of redress.

State criminal prosecutions are one way that states provide an “instrument of redress” against federal overreach (among others, like state damages suits). Although such prosecutions are relatively infrequent, federal courts have long acknowledged that they play an important role in our system of federalism. While state prosecutions have at times been aimed at undermining federal law—such as in pushback to Fugitive Slave Act enforcement or, conversely, to desegregation policies—they can often be a tool for upholding and reinforcing federal law. In particular, state-law prosecutions can provide accountability if federal officers use excessive force or violate constitutional rights.

The traditional method for checking state overreach in criminal prosecutions, meanwhile, involves the process discussed above: (a) allowing the federal officer to move the claim to federal court and (b) providing immunity if the officer was indeed reasonably acting within the bounds of lawful federal duties. These safeguards limit the ability of state officials and state courts to undermine the valid implementation of federal law.

This process has played out recently, for example, in a Virginia prosecution of U.S. Park Police officers who shot and killed a man in 2017 and in an Oregon prosecution of a Drug Enforcement Administration officer who hit and killed a cyclist in 2023. The Virginia case was dismissed based on Supremacy Clause immunity; the Oregon case is pending in a federal appeals court. In neither case did local or state officials face retaliatory federal prosecution.

But the current administration has already demonstrated that it is willing to pursue criminal charges against state actors in other contexts, such as filing charges against Milwaukee County Circuit Judge Hannah Dugan for allegedly helping a man evade immigration agents in her courthouse.

If a state or local official has reasonable grounds for bringing state charges against a federal actor, it is difficult to see how a tit-for-tat federal prosecution of the state or local official could ultimately succeed. But it remains to be seen whether norm-breaking threats of such federal prosecutions will deter state or local officials from pursuing federal officers who they believe are unjustifiably violating state criminal laws.

***

As ICE agents continue to carry out widespread immigration raids throughout the country, their actions are increasingly facing scrutiny. Where federal officers act unlawfully, commit unauthorized acts, or act unreasonably in carrying out their duties, they are not shielded by federal immunity and can therefore be subject to state criminal prosecutions. And such prosecutions have a long history in the United States, forming an important part of the balance of power between the state and federal governments—a balance designed to protect against “tyranny and abuse.”