Minnesota Can Prosecute Jonathan Ross—But It May Not Be Easy

On Jan. 7, a federal Immigration and Customs Enforcement (ICE) agent, identified by the media as Jonathan Ross, shot and killed Renee Nicole Good in her car in Minneapolis, Minnesota. The FBI is investigating the shooting, but despite an initial promise of collaboration, it subsequently informed state officials that it would not work with them. As a result, Hennepin County prosecutor Mary Moriarty and Minnesota Attorney General Keith Ellison have launched their own investigation. 

State criminal investigations and prosecutions of federal officials are unusual. And criminal charges against law enforcement officials at any level present unique legal and factual challenges. But as illustrated by Minnesota’s successful prosecution of Derek Chauvin for the murder of George Floyd, law enforcement officers can be held accountable for crimes they commit. And longstanding historical precedent establishes that states can bring charges against federal officials under certain circumstances. 

Whether Minnesota ultimately prosecutes Ross remains to be seen, and state officials’ decisions will depend on careful legal and evidentiary analysis. Without predicting outcomes, however, it’s worth both clarifying the state of the law—especially in the face of false claims from the Trump administration—and identifying some of the key issues Minnesota prosecutors will have to consider.

First, let’s debunk claims that the state has no role to play here. The day before Moriarty and Ellison announced the state investigation, Vice-President J.D. Vance claimed that Ross has “absolute immunity,” suggesting that there are no circumstances under which the state could prosecute him. And Secretary of Homeland Security Kristi Noem claimed that the state has “no jurisdiction,” which is why, she said, it was shut out of the investigation. More recently, Deputy White House Chief of Staff Stephen Miller announced that ICE agents “have immunity to fulfill their duties” and that “no one … can prevent you from fulfilling your legal obligations and duties.” In fact, Vance and Noem are completely wrong as a matter of law, and Miller’s claim holds water only insofar as ICE agents are in fact acting within their legal authority, which, as explained below, will be a central issue in any state prosecution. 

The notion that Minnesota cannot investigate or prosecute a violation of its criminal laws within its borders is flatly inconsistent with our federalist system. As the Supreme Court has recently reiterated, the states and the federal government each have a sovereign interest in enforcing their own criminal laws. Sometimes that means that both a state and the federal government prosecute the same person for the same conduct, as happened with Derek Chauvin. When that happens, because of those separate sovereign interests, double jeopardy does not apply. Here, double jeopardy is not the key question (although at some point in the future a different federal administration could presumably prosecute Ross regardless of what Minnesota does). Instead, “dual sovereignty” in the present context means that the state has a legitimate interest in enforcing its laws even against federal actors.  

Such cases are unusual, but they are not unprecedented. As Bryna Godar has documented, states have been bringing prosecutions against federal officials since at least the nineteenth century, including for crimes involving the use of force by law enforcement officials. These cases have involved charges of murder, attempted murder, assault, and other violent crimes, often brought against tax collectors or federal agents enforcing Prohibition. More recently, the state of Idaho brought murder charges against an FBI agent who shot and killed an unarmed woman during a lengthy stand-off known colloquially as “Ruby Ridge.” In other words, there is no question that Minnesota has jurisdiction to investigate and charge Ross with a crime and there is no automatic or absolute immunity because he is a federal officer. The administration’s claims otherwise are false.

Nonetheless, in deciding whether and how to proceed, Minnesota officials will face some challenges, from the factual investigation; to determining what, if any, charges to bring; to evaluating the defenses that Ross, as a law enforcement officer, may have—and the related likelihood that he could successfully claim what is known as “Supremacy Clause immunity,” which (contra Vance) is not absolute, but which Ross would almost certainly attempt to invoke. 

As a practical evidentiary matter, if the FBI or other federal investigators do not share their investigatory files with the state, state officials have cautioned that they might determine that they do not have a sufficient evidentiary record to make a charging decision. That’s not a foregone conclusion, of course, and even if they conclude that they cannot charge Ross now, that assessment could change if a future administration is willing to share information with the state. (Minnesota has no statute of limitations “for any crime resulting in the death of the victim.”) In any event, at this time, Moriarty and Ellison are asking the public to share video and other information, and state officials are evaluating the evidence they already have. They may well conclude that they have sufficient evidence to prosecute Ross for any of a number of crimes, including various forms of murder and manslaughter and the failure to provide aid to a shooting victim. 

Each of those crimes has its own set of elements, and the Minnesota prosecutors will review the evidence to see if it meets those elements. Derek Chauvin’s prosecution for killing George Floyd is a useful example. Chauvin was convicted of unintentional second degree murder, third degree murder, and second degree manslaughter. The unintentional second degree murder charge, which is comparable to what some states call felony murder, required showing that Chauvin killed Floyd while committing a separate felony, in that case a form of assault. 

Third degree murder in Minnesota, of which Chauvin was also convicted, requires a showing that the defendant, “without intent to effect the death of any person, causes the death of another by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life …” In Chauvin’s case, the prosecution established those elements in part through evidence that the use-of-force training Chauvin received included instruction to avoid putting pressure on an individual’s neck, as Chauvin did to Floyd. Similarly, the second degree manslaughter charge required the prosecution to show that Chauvin “create[d] an unreasonable risk, and consciously t[ook] chances of causing death or great bodily harm to another.” 

Minnesota prosecutors will also evaluate any state law arguments Ross might have. For example, Minnesota’s state law authorizes peace officers to use deadly force under some circumstances. As relevant here, peace officers can do so under that law

only if an objectively reasonable officer would believe, based on the totality of the circumstances known to the officer at the time and without the benefit of hindsight, that such force is necessary: (1) to protect the peace officer or another from death or great bodily harm, provided that the threat: (i) can be articulated with specificity; (ii) is reasonably likely to occur absent action by the law enforcement officer; and (iii) must be addressed through the use of deadly force without unreasonable delay… 

I would expect Minnesota prosecutors to evaluate the evidence carefully to see if Ross might be able to establish these factors, which I’ll address further below. (I leave aside the legal question of whether Ross would be considered a peace officer under Minnesota law.) And regardless of what they conclude about prosecuting the shooting itself, they will likely separately evaluate whether Ross – and his fellow ICE officers – violated Minnesota law requiring both a person who shoots someone and any witnesses to immediately investigate and render appropriate assistance.

Should Minnesota charge him, Ross will undoubtedly claim a form of immunity generally referred to as “Supremacy Clause immunity.” Contrary to Vance’s claim and Miller’s insinuation, however, Supremacy Clause immunity is not absolute. Rather, it balances the dual sovereignty already discussed with the additional principle that states cannot supersede federal laws. That balance means that Supremacy Clause immunity is available only to federal officials who are acting reasonably and lawfully in fulfilling their duties. More specifically, as Bryna Godar explained in November, it applies only if “[t]he federal official’s actions [were] … (a) authorized by federal law and (b) ‘necessary and proper’ in fulfilling the official’s federal duties.” 

The inquiry into whether Supremacy Clause immunity applies in this case will thus likely include, for example, reviews of the federal government’s use-of-force policies to determine if Ross acted outside his authority and/or acted unreasonably. Those policies, for example, state that law enforcement officials (LEOs) “should … avoid intentionally and unreasonably placing themselves in positions in which they have no alternative to using deadly force”; they permit deadly force only “when the LEO has a reasonable belief that the subject of such force poses an imminent threat of death or serious bodily injury to the LEO or to another person”; they generally prohibit the use of deadly force “solely to prevent the escape of a fleeing subject”; and they specifically discourage LEOs from firing at “the driver of a moving vehicle.” The policies also require federal LEOs to “obtain appropriate medical care” after any use of force. If Ross violated these provisions, his immunity claim will be weaker. Likewise, the court will likely look at whether Ross used deadly force in violation of the Fourth Amendment, including whether his failure to warn Good before firing his gun was unconstitutional.

This immunity inquiry also overlaps with Minnesota’s state law authorizing peace officers to use deadly force, described above. Under all of these inquiries, questions of whether Ross acted reasonably under the circumstances will play a central role. In other words, both the state prosecutors’ charging decisions and the immunity determination will depend on questions of fact about the details of what actually happened, as well as on questions of law as to the implications of those facts. For example, did Ross believe that he was in imminent danger of death or serious bodily injury when he fired the first shot? If so, was that belief reasonable? Did Ross prepare to draw his gun before or after Good’s car started moving, and if not, why did he shift his cellphone from his right to his left hand? Did Good’s car touch him at any point? What about Ross’s belief as to whether he was in danger when he fired the second and third shots? On what basis did he, and his colleagues, fail to provide assistance to Good after she was shot and prevent a physician who was on the scene from helping? All of these questions go to both whether Ross has Supremacy Clause immunity and to whether he is likely to be convicted if charged and tried.

Finally, whether Supremacy Clause immunity applies will almost certainly be decided by a federal court, even though any criminal charges would first be filed in Minnesota state court. That is because federal officials are able to remove both criminal and civil cases from state court to federal court if those cases involve actions taken “under color of” their federal office. If charged, Ross would almost certainly choose to remove the case. Even in federal court, however, state criminal prosecutors would remain in charge of the prosecution, and any conviction would be a conviction under state law. And the president cannot pardon a state law crime.

In closing, Minnesota unquestionably has jurisdiction to investigate and to bring criminal charges against Ross. And Ross does not have absolute immunity, although he will certainly claim Supremacy Clause immunity if charged. We simply do not know at this point whether such a claim of immunity is likely to be successful.

Those looking for quick resolutions are likely to be disappointed. I expect that the Minnesota authorities will carefully and deliberately analyze the evidence they have access to, so it could take some time for them to decide whether to prosecute Ross. Moreover, if and when the state does bring charges, the immunity issues will be litigated first. As a result, it could take a very long time—even years—before there is a trial, much less a conviction. 

Regardless of what happens in this particular case, federal immigration officers around the country should be on notice that they do not have complete impunity. They can be prosecuted and may be convicted. Lawless violence and unconstitutional actions may, sooner or later, end with a prison sentence.