Lawfare Daily: The Legal Fallout After a Fatal ICE Shooting in Minneapolis

[Intro]

Eric Columbus: Generally speaking federal agents are immune from state prosecution if they acted in an objectively reasonable manner in carrying out their duties. So that's kind of a, a, a two part test, whether they're carrying out their duties and whether their actions were objectively reasonable.

Anna Bower: It's the Lawfare Podcast. I'm Senior Editor Anna Bower with Senior Editors Eric Columbus and Mike Feinberg.

Michael Feinberg: If they find that the conduct of the driver did in fact meet the requirements for an assault on a federal officer, then that's gonna necessarily impact how seriously you take the mindset and testimony. The officer who fired the shots

Anna Bower: Today we're talking about the legal fallout in the aftermath of a fatal shooting by an ICE agent in Minneapolis.

[Main Podcast]

Eric and Mike, we have convened to record this podcast today on Thursday, January 8th to discuss the tragic events that occurred yesterday in Minneapolis. A 37-year-old woman and mother of a young child, Renee Nicole Goode, was shot and killed by an ICE officer. The shooting has sparked national outrage and calls for an investigation and potential charges against the officer.

There's all kinds of legal issues that we can get into, but I wanna start with what we know about this very fast moving story. So, Eric, can you tell us a little bit about what happened yesterday in Minneapolis? What do we know and what do we not know?

Eric Columbus: Sure. So there are multiple video accounts of what happened which is the primary sources at this point. It appears that a, a woman was in a car reportedly a Honda Pilot on a residential street in Minnesota, in Minneapolis. And ICE agents were in a nearby car. There may have been other ICE agents in the area. Some ICE agents approached her car and on foot and apparently I told her to move her car.

She was at that point perpendicular to the road. It was either a, a two way street or a a one way street with two lanes and one agent kind of put his reached to to her door handle, may have been trying to get inside her door. She backed up a bit and then tried to pull forwards at low speed. At that point, a different ICE agent fired apparently three bullets.

At her, at least one of them through her front windshield. I'm not sure about whether the others were through the front or through the side windshield. The car then turned to the right and slowly crashed into a car in front of it, maybe 50 feet down, and the, the woman then, then died as a result of the crash.

It's not a hundred percent clear whether or not her car touched the officer at all. From some angles, it looks like he was clipped a bit, but does seem like he fired before that happened and she was traveling at very slow speed. Mike, is there anything you wanna supplement to that then? Go ahead.

Michael Feinberg: No, those that very accurately relays the facts as I have understood them as well, which I will also hasten to add, is based entirely up on various news reports and firsthand footage by people at the scene.

There has not been a lot of factual information released by the government at this point beyond general statements of support from the very highest levels of the executive branch to individuals in the department that is not based on opinion or defense of the officer. Nothing has been officially released, which can shed light on person's movements or trajectories or the substance of any interactions that were not captured by those cameras on scene.

Anna Bower: Yeah. So Mike, you mentioned the statements that some high level officials have made in the wake of this shooting. DHS officials have given an account of the shooting in which they claim that the victim, Renee, good intentionally tried to run over ICE officers. They called it an act of domestic terrorism.

The president of the United States himself has said that she did run over an ICE officer. It seems to me that the videos that we have seen clearly contradict those accounts, but I'm curious, you know, what you make of this as yourself being a former law enforcement officer. It seemed to me that those public statements about the shooting were really out of step with what it would be, the kind of usual process of an investigation and not commenting on an ongoing investigation. But what did you make of it, Mike?

Michael Feinberg: It is certainly a deviation from historical practice. During the nearly two decades I spent in federal services, a special agent, officer involved shootings, whether an internal investigation done by the agency to which the officer belonged, or whether an external investigation of another agency.

Our fundamentally investigations and most departments do have very explicit policies on not commenting on ongoing investigations. And there's a couple reasons for this. First of all, until the investigation is fully completed, you don't actually know what happened and. There's just a risk as pedestrian as the sounds of embarrassment by stating facts that could be proven wrong a few days or weeks later.

The second is you have to be cognizant that all these investigations could, under some circumstances, result in indictments or formal charges, and you don't wanna do anything that is gonna taint a future case or a potential jury pool. This is pretty of the ordinary.

And for it to come not only from the agency head, but also from the president of the United States or the vice president of the United States is extremely out of the ordinary for historical practice, but it should be noted not out of the ordinary at all for this administration. There has been a pretty consistent drumbeat of public statements about ongoing investigations when those statements will either help curry favor with the president or further the agency's official position.

The Atlantic Monthly has written articles about this. Lawfare itself has written articles about this. There is a tendency from law enforcement and Justice Department officials to regularly tweet updates on investigations that they know the president is following. And there is a tendency to let certain friendly media outlets know what's going on in these investigations before others.

So, is this shocking and surprising in the overarching history of law enforcement in the United States? Absolutely. Is it shocking and surprising in the history of law enforcement in the United States for the past 12 months? Not at all.

Anna Bower: Yeah. And, and another thing that stood out to me as well about some of the statements one of them was Kristi Noem said that the officer was an experienced officer who acted within his training.

Mike, you've never been an ICE officer, but you were a long time FBI official. And I understand that you spent some time yesterday combing through various, you know, policy documents and, and training guidance. So what can you tell us about ICE or federal official use of force policies? Do you, looking at these videos and understanding that, you know, we don't have all of the facts here, but do you think that the officer's actions were consistent with those policies?

Michael Feinberg: So there's quite a bit to unpack in that question. First of all, I would be not diligent if I didn't point out that part of the reason we may be seeing so many comments is for the first time in history. We are seeing the people running these agencies have no firsthand personal experience with how they operate in that.

You know, the head of the FBI has traditionally been a judicial official or a very high ranking former DOJ official. The head of DHS has been somebody with extensive government service. It's a younger organization, so there aren't as many veterans who are free to take the job now, but Kristi Noem, as far as I know, has zero federal law enforcement or prosecutorial experience, which may explain partly why she is so eager and willing to comment on this.

For the second part of your question, what you're asking me to do is sort of violating in unofficial oath among all law enforcement officers, which is, it is very. Inappropriate. We generally feel to explicitly state whether somebody was in or outside of policy for the simple reason that under the legal standards and under the use of force policies, which are based on those legal standards.

A lot depends on the individual officer's perception of what was occurring. So deadly force policies differ from department to department. DHS's policy is not the exact same as DOJ's policy, but they share a number of commonalities because they all stem really from the same two cases. And this is all within the Fourth Amendment context.

Because shootings are treated, believe it or not, as seizures. You are essentially seizing the body of the person you shoot. And the controlling case is a case. I believe, and I'm gonna explain in a minute why I don't have the sight offhand. I think it was Graham v Connor, which states that an officer's use of force in this context has to be objectively reasonable.

And there is a later case, Tennessee versus Garner or maybe Garner versus Tennessee–I forget which–sort of develops that standard. And what eventually comes out of that is that the action is objectively reasonable if the officer involved has probable cause to believe that the subject of deadly force is posing an imminent threat of death or serious physical injury to the officer, him or herself, or to another human being.

So it's a little interesting that we use the term objectively reasonable because you're basing it fundamentally on something that is inherently subjective, which is the individual's perception of the events that are occurring and whether that individual has a reasonable belief that there is a serious threat of imminent death or physical injury to himself or another person.

And what is going to really be the deciding factor in the evaluation of whether this ICE officer was objectively reasonable was did he believe that she was actually going to attempt to run him over? I would be remiss if I didn't note that the area of, deadly force intersecting with moving vehicles is actually a fairly nuanced and metamorphosizing area of law. And this is the one area, interestingly, where different departments have different interpretations and allowances of how an agent can behave.

Based on the videos I saw yesterday, I do not think if the DOJ deadly force policy was in play. That this would be considered what law enforcement officers refer to as a good shoot, and by good shoot nobody means that it's a good thing to shoot happens. It just means that the shoot was justified under policy, under DHS deadly force policy, I think there is a chance that the agent involved, the officer involved would be within scope. But again, it's really hard to say based on the limited information we have.

Anna Bower: Thanks, that's really helpful. So, beyond the policy question, which it I, I think is also kind of overlaps with the question of whether there was a violation of law here there's the question of, you know, who could potentially investigate and prosecute in a situation like this?

Eric, there have been calls for authorities in Minnesota at the state level to investigate and potentially bring charges against this officer. What can you tell us about whether or not Minnesota can prosecute a federal official and, and what would some of the obstacles be to doing so?

Eric Columbus: So generally speaking, it is harder but not impossible for a state to prosecute a federal officer. Generally speaking federal agents are immune from state prosecution. If they acted in an objectively reasonable manner in carrying out their duties. So that's kind of a a two part test, whether they're carrying out their duties and whether their actions were objectively reasonable.

If Minnesota chose to prosecute there is something known as the Federal Officer Removal Statute, which allows a federal officer to transfer a criminal case from state court to federal court. If he has a colorable defense of immunity as he probably would here, it would not mean that he wins necessarily. Just that he has a plausible sounding enough defense that it should be adjudicated by federal courts.

And this was, this statute goes back actually to the War of 1812, and is designed to basically on the theory that federal courts and are more likely to be on the lookout for the rights of federal officers against possibly hostile state prosecutors, even though of course the jury pool is, is the same in, in, in both cases more or less, they both would be the residents of, of Minnesota.

And so, for example, there was a, a tragic case in I believe 1992 or thereabouts. Ruby Ridge standoff in which the FBI tried to arrest a I believe member of a, a right wing militia named Randy Weaver.

Michael Feinberg: He, he was a solo survivalist who had built a, not a commune 'cause it was just him and his family. But he built a compound on a mountainside basically. And two U.S. marshals had gone there to serve him with papers. I believe he murdered one of them and it resulted in a long siege involving the FBI's hostage rescue team and his family.

Eric Columbus: Yeah. And, and at the end of that, that siege, a an FBI special agent was I, I believe, aiming at one person in the compound and fired and accidentally hit and killed Weaver's wife, who was think wholly their infant daughter at the time in, in her arms. The DOJ investigated, chose not to prosecute. The state of Idaho did choose to prosecute, and the case was removed to federal court.

The district court granted the motion of the FBI agent to dismiss the case on grounds of immunity, the case it was appealed by the federal government wound up going to en banc Ninth Circuit, which held that on the facts before it. It could not determine whether the agents actions were objectively reasonable and it remanded for fact finding to the, the district court.

So you've got this kind of weird situation where he is setting up a trial where you need kinda like a little pretrial before it in order to have an evidentiary hearing to find out whether or not the objectively reasonable test was, was met for the actual trial. We, we don't know what would've happened because the state prosecutor eventually chose to drop the case. You shaking your head, Mike.

Michael Feinberg: The state prosecutor did not choose to drop the case. The state prosecutor was voted out in the subsequent election and the successor state prosecutor did not move forward with it.

Eric Columbus: Thanks for that clarification. So, yes, the, basically the result was that the state chose not to go forward. So it was it, it ended, but that is how it would play out in this situation if Minnesota chose to prosecute the ICE agent who shot and killed.

Anna Bower: And am I correct that, you know, the, the way that this would work as you've described, is there's first this like first step of removal to federal court, and this removal question came up in the context of the Trump cases a lot that we covered very closely.

People like Mark Meadows tried to remove, there was an evidentiary hearing around it. He testified in court. So we're pretty familiar, and we've talked a lot at Lawfare about these removal questions, but just to remind folks, it it's my understanding that just because a case is removed to federal court, the charges stay the same.

These, these would still remain state charges, even though the forum is different in that the case would play out in federal court and supremacy clause, immunity could be raised as a defense there. But it seems to me that that still means that there's no opportunity for a pardon, which of course if there were to be federal charges, which will will get to the federal investigation side of this. And that would be pardon, ineligible. Am I right about that, Eric? Is that your understanding?

Eric Columbus: Yeah, that's, that's an excellent point. And it's definitely right. The president would not be able to pardon the agent. And, and also we should note that it would, the, the, the, the prosecution would then depend upon, the actual text of and interpretation of the Minnesota State law, either a murder statute or a, I don't know anything about Minnesota law, whether there are maybe an a, a negligent homicide or voluntary homicide. Different states call these things different.

And, and, and what Minnesota law says about when one may legally use force, so the federal court would then be applying that law. And in order to secure a conviction, the prosecutors would, would need to prove beyond a reasonable doubt that this federal agent violated in the a Minnesota criminal stature.

Anna Bower: Right. And that's a great point because justification defenses are, can be very different from state to state in terms of what makes the conduct unlawful.

So it'll be very interesting to take a deep dive look at some of those, that Minnesota law, because that's something that I have not looked into myself. Mike, I wanna come back to you to talk about the federal investigation aspect of this. The FBI has said that there is an investigation. I understand that there's also an investigation that's ongoing in Minnesota, and as we record this on Thursday, January 8th, there's also news reports this morning that the FBI is refusing to share investigatory materials with the state investigators.

So what can you tell us about the FBI investigation? What do we know about it? And then also, how do jurisdictional issues in these kinds of cases typically work? Because my understanding is that. It's a separate sovereigns doctrine means that, you know, the state could investigate as well as the FBI, but Kristi Noem this morning said that the state has no jurisdiction in this matter.

So what can you tell us about all of that?

Michael Feinberg: Well, I would not be relying on Kristi Noem for acute legal analysis, but I'll get to that in a second.

Anna Bower: Good point.

Michael Feinberg: So I wanna, I, I think the first thing we need to say is the FBI is conducting an investigation. We do not know what the investigation is off. There is going to be a tendency to jump to the conclusion that the FBI is investigating the shooting probably under a color of law theory that the civil rights of the victim were violated.

But what is probably more likely, I would assume, based on our current environment, that what the FBI is actually doing is conducting an assault on a federal officer investigation with respect to the driver and potentially the passenger of the vehicle in question. People should not assume unless we are explicitly told differently by somebody in authority in the government that the investigation going on now. As the subject.

Now that said, regardless of what of an investigation is being carried out right now. You know I'm gonna do something I haven't really done since May 31st when I resigned from the FBI, which is to defend the FBI leadership. It is very out of the ordinary when there is any sort of ongoing investigation for the FBI to share evidence or case files with state or local agencies or prosecutors.

Generally speaking, until the FBI has completed its investigation and either not to use the legal term, but absolved somebody. Or there are formal charges, or in the case of a deceased subject, a statement that were the subject alive, there would be formal charges. The FBI is generally not supposed to or going to remark on what their finding or provide their findings to anyone else during the investigation's lifespan. Now complicating this is, as we discussed earlier and, and as has been written about. Extensively in multiple outlets. That's not a policy that the current heads of these organizations tend to follow now, except when it benefits them.

You know, we've seen multiple comments about the search at former Ambassador John Bolton's house, which Kash Patel and Dan Bongino were live tweeting as it was happening. We've seen multiple statements about the Comey investigation, multiple statements about the James investigation, so it's totally natural for people to assume if they haven't followed this stuff for decades, that it's weird that the FBI is not sharing anything now. But that's actually, that's the norm.

Anna Bower: Yeah. Eric, do you have anything to add on that about any of the jurisdictional questions between the state and the FBI here?

Eric Columbus: I think one thing that's kind of interesting is that this is obviously the same city where George Floyd was, was killed by then state police officers five years ago. And I've been reading that Minnesota has basically boosted its own criminal investigation capacities in, in cases such as this as a result of the investigation of George Floyd. So it'll be interesting to see if they can find a way to try to deploy that in the weeks and months ahead.

Michael Feinberg: I'd like to add just a couple of wrinkles for our listeners to keep in mind as this story progresses. First, there's gonna be a lot of talk if the FBI is investigating the shooting itself about parallel investigations, and I want people to understand how this generally works in in practice. Parallel investigations–that is investigations where there is an open case at the state level and an open case at the federal level, and the two agencies are cooperating hand in glove to try and reach a common conclusion or common findings–are actually fairly rare.

You get them a lot of times in violent crime and drug cases where there are different state statutes that you might wanna prosecute at the state level and federal statutes that you wanna federally prosecute at the federal level. But what is far more common is for one agency to take the lead.

Based upon where the charges are gonna be the most successful and result in the greatest sentence, and embed personnel from the other agency with their team, with their task force while that case has worked at either the federal level or the state level. So when we talk about parallel investigations, I just want people to understand that is more nuanced than it sounds.

The second thing I want to add is there is an exception to the normally deliberative timeline that is probably governing how this investigation is being run. If it is an investigation into the shooting and not an investigation to an assault on a federal officer, and that is when it is an internal investigation.

When it is the FBI investigating an FBI agent shooting when it is ICE or DHS investigating an ICE agent shooting, and it's a matter of internal affairs, those are done with extreme alacrity and they are done that way specifically to forestall any divergence between what the state may do and what the federal government may do.

So if there is an internal investigation into an officer involved shooting or an agent involved shooting, and the agent or officer is fundamentally exonerated, and I use that term colloquially in the course of that investigation. It is not uncommon for the local U.S. attorney or Department of Justice to very quickly relay those findings to state or local prosecutors in the hopes of stop, of avoiding a situation where the state says X happened and the federal government says Y happened.

Anna Bower: Yeah. So Mike, I'm, I'm curious. I, I wanna get to the question of. You know, some of the potential civil litigation aspects of this. But before we do, because we've been focusing on the criminal investigatory side, or internal FBI investigatory side, you've mentioned that this FBI investigation, the subject might not be predicated on, you know, a deadly use of force, but instead assault of an officer.

Can you just give us more of an overview of what you mean by that? Because when I hear that, I think, oh, but the potential subject is deceased. So what do you mean by that? When you say that the subject of of this investigation could be assault on an officer?

Michael Feinberg: Yeah, so essentially the narratives that we're able to construct based on what we know is that it, there was somebody involved in some sort of behavior. It's been reported that they were ICE watchers videotaping things that were going on, alerting residents. They were in a vehicle that was parked in such a manner that being charitable to how ICE reacted ICE was attempting to get them to move.

Now, I don't know that's what ICE was doing. The language and level of aggression that we see in the videos would argue they were trying to do something more extreme and potentially interfere with the individual's First Amendment rights because one of the ICE officers start swearing lodging to the door and threatening to pull the driver out.

That seems like a really unnecessary escalation of the situation. Particularly as it looks like the driver was trying to get away from the area. But let's put that aside. If I'm the ICE officer and I'm looking to justify the shots I made under my agency's deadly force policy, the only way I can do that in that scenario is if I am in legitimate fear for my life, abide the objectively reasonable standard that the court outlined in Graham v Connor.

Now, the only way in that situation that that is going to happen is if I can say the driver from the point of view of that agent at the front of the vehicle, if I can say the driver was going to attempt to run me.

Anna Bower: And so that investigation would be carried out even though there's no chance of criminal prosecution of the driver.

Michael Feinberg: Yeah. It's actually important because if they find that the conduct of the driver did in fact meet the requirements for an assault on a federal officer, then that's gonna necessarily impact how seriously you take the mindset and testimony of the officer who fired the shots.

Anna Bower: I see, but you're not suggesting some type of like accessory liability in investigation of the people who were around the the car. Is that, am I right? Okay.

Michael Feinberg: Yeah. No, no. When, when I say assault on a federal officer case, what I'm talking about is they may very well be examining the conduct of the driver and possibly the conduct of the passenger in terms of whether they were trying to harm the agent who was in the front of the vehicle.

Anna Bower: I see. Okay. I just wanted to get a better understanding of that. That's very interesting. Thank you. So I wanna talk a little bit about potential litigation in the civil context, as people may know who listen to the Lawfare podcast. It is very difficult, if not impossible, often to sue an officer for wrongful death because the doctrine of qualified immunity is so robust.

But I, Mike, I'm curious if you have thoughts about how, if there is a civil suit brought by the family members of Renee Good, how, how would the officer here potentially defend himself or prepare to defend himself in such a case?

Michael Feinberg: So I'm not gonna address the legal aspects of the defense. I'm gonna address more of the pragmatics because this situation is something that law enforcement officers are prepared to confront from probably the first or second day that they begin their training and.

The officer has probably taken a number of steps without knowing that this situation was ever going to occur in reality, to deal with it as a hypothetical. So the first is almost every federal office who follows the news and is engaged in tactical situations is probably gonna have federal law enforcement officer professional liability insurance Now.

So people need to understand. A lot of times when a federal officer gets sued for hundreds of thousands or millions of dollars, they're actually covered by an insurance policy. The same way that a homeowner or an automobile driver is covered by an insurance policy and their legal fees, their legal representation, any damages is gonna come out of that, not necessarily their personal pocket.

The second thing to realize is that some law enforcement agencies have unions very similar to local fraternal order of police type unions that are going to also provide them with representation and public affairs support throughout this endeavor. And a lot of the agencies for which unionization is prohibited by federal statute, are gonna have an agent's association or be members of the Federal Law Enforcement Officers Association that is going to do the same thing.

And those are the groups that will usually offer statements publicly in support of the officers rather than the division heads themselves, like Secretary Noem or Director Patel. So it's important to understand like. No officer faced with this situation is going to be dealing with it for not the first time, but in a totally impromptu fashion.

There are entire organizations and corporations that exist to do nothing but represent and support officers in these sort of matters. What I mean by articulating all of this is that law enforcement officers, when confronted with this situation, aren't gonna personally become enmeshed in discussions of legal strategy or precedent because there is an entire ecosystem that already exists, which is there for them to drop upon to defend themselves.

There is a machine that will be put in motion now. That has done this before, even if the individual officer has never been involved in a shooting, him or herself.

Anna Bower: Thanks, Mike. That's helpful. So I wanna end by focusing on what we don't know or what we haven't seen yet. What we have seen is a number of videos from various angles showing these events.

But you know, my understanding from watching those videos, it looks like. The ICE officer was filming on his iPhone in the immediate, in the immediately proceeding moments before the shooting, there's also been in litigation, a lot of issues over ICE body cams and, and whether those ought to be turned on.

There's DHS policy covering that? I believe so. I I'm just curious, you know, from both either of you. What do you think is yet to be seen in terms of the actual video evidence of this episode and what policies or court orders are there that might cover whether that body cam footage has to be released and so on? Mike, do you have thoughts on that?

Michael Feinberg: Yeah, I do. I, I think it's potential that we actually see quite a bit more in the days and weeks to come. Different agencies have different body-worn camera policies and when they have to be turned on, some are, they have to be turned on anytime you're interacting with the public.

DOJs policy was they only need to be turned on and worn during pre-planned operations. So a lot's gonna hinge upon not just DHS's policy, but if there's a specific policy for ICE. What sort of operation was this? Was there an ops plan? Was it reactive where the body cams on because of something else and they just never turn them off?

People understand like these things aren't running 24 7 for federal officers. It is a fairly new development, only since the murder of George Floyd that federal officers are wearing body worn cameras at all. It's something that has long been common for state and local officials. It is something that is still very new for the federal level.

You know, my last full year in the FBI, 2024, our field office was still figuring out our specific policy. There's general DOJ guidance, there's general DHS guidance, but there's still gonna be some latitude given to the individual offices for how to put that guidance into practice. So there's gonna be a lot of nuance to this now.

In years past, whenever there has been footage of a very controversial operation, and that footage can shed light on what actually happened, particularly if it's exonerating of the agency's actions, there is a rush to get it released. But again, we're an uncharted territory with how this administration and its agencies are dealing with the public. So I don't wanna get anybody's hopes up about that happening.

Anna Bower: Eric and Mike, we will leave it there. Thank you so much for joining me today.

Eric Columbus: Thank you, Anna.

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