Do Federal Officials Really Have “Absolute Immunity”?
On Saturday, agents with U.S. Border Patrol killed a man named Alex Jeffrey Pretti, the second person who has been shot dead by federal personnel in Minneapolis since President Donald Trump launched an immigration-enforcement operation in the city earlier this month. After the first killing, of a woman named Renee Good, who was shot behind the wheel of her car by an ICE agent, federal officials made clear that they had little interest in conducting an impartial investigation into the circumstances of her death. During a press conference, Vice-President J. D. Vance said that federal officials have “absolute immunity” in performing their duties. In the aftermath of Pretti’s death, which has prompted even some Republican officeholders to call for an investigation, state officials have accused the federal government of blocking access to the scene of the shooting. Multiple members of the Trump Administration have called Pretti a “domestic terrorist” and falsely described what occurred when he was gunned down, which was captured on video. On Saturday night, a federal judge ordered the government not to destroy or alter evidence after a lawsuit was filed by Minnesota authorities.
To talk about what state officials can and cannot do to investigate and prosecute crimes allegedly committed by federal officials, I spoke by phone with Steve Vladeck, a law professor at Georgetown who writes a newsletter on legal issues called “One First.” During our conversation, which has been edited for length and clarity, we discussed why the law on these questions is so unsettled, how the Trump Administration could try to sabotage potential state actions, and how the Supreme Court might view future cases that feature a clash between executive power and states’ rights.
Tell me if this is helpful—there are two different ways it can be difficult for states to investigate or prosecute federal officials. One of them has to do with the law itself as defined by the courts, and the second has to do with the Trump Administration trying to throw up every roadblock it can. Those seem like different things.
I think that’s very helpful. There’s both the question of whether the law would allow a prosecution and whether as a matter of pure logistics, the prosecution is viable. We haven’t usually had to worry about the second one, but we certainly have to worry about it right now.
So then let’s start with the first one, which relates to why it could be complicated for state officials to charge federal officers with crimes in a state such as Minnesota. What is the primary legal roadblock?
The primary legal roadblock is the doctrine that’s become known as supremacy-clause immunity. This is a not-very-well-developed idea dating back to an 1890 Supreme Court decision, which basically says that federal officers are immune from the consequences of state law for actions they’re performing in the legitimate exercise of their federal duties. And the idea, which I think is actually relatively uncontroversial, is that federal officers who are lawfully acting within their federal duties are necessarily acting in a way that has to override contrary state laws. It’s analogous in that respect to the doctrine that’s generally known as preëmption—that valid federal laws will always displace valid state laws.
So the idea here, in the best case, is that if federal officials are trying to enforce desegregation at a school in the South in the nineteen-fifties, for instance, then state and local officials cannot mess with them?
That’s exactly right. You can’t prosecute federal officers for trespassing, for example, for enforcing a court order on a public school in the civil-rights era.
Was the thinking behind the decision so high-minded, though, back in 1890?
Actually, it was. So, the 1890 decision is this remarkably colorful case about the attempted assassination of Justice Stephen Field, and the question was whether his bodyguard, who was a deputy U.S. marshal, could be prosecuted by California for the murder of the Justice’s would-be assassin. And that was a context where I don’t think it’s especially surprising that the Supreme Court was of the view that the federal officer was immune from prosecution under state law for protecting one of their colleagues.
What other decisions have come up about these questions since 1890?
The biggest problem is that there really haven’t been that many cases, and virtually none that have gone back to the Supreme Court. Most of the development of the doctrine has actually been in lower courts. And one of the things I think is unhelpful is that, even when lower courts held in at least some of these cases that prosecutions could go forward, they were often dropped by the prosecutors before they produced a verdict. So we actually have a very, very tiny number of examples of successful state prosecutions of federal officers in American history. Of course, one might also say we don’t have that many examples in American history of what’s been happening in Minneapolis over the past three weeks.
Has the Supreme Court ruled that Congress needs to provide authorization for states to go after federal officials? Am I understanding that correctly?
The Supreme Court has never said that. There are other contexts in which the Supreme Court has said that Congress needs to specifically authorize, for example, [civil] damages suits before federal officers can be sued for violating the Constitution. But we’ve never quite had that ruling in the context of criminal prosecutions. And that’s because these cases have been so few and far between.
The real development in case law has been trying to figure out exactly where the line is between the officer who was immunized because he was acting in good faith and the officer who went too far and should have known that he was going too far. There is a 2006 ruling in the federal appeals court in Denver, which was written by Michael McConnell, a very highly regarded and pretty right-of-center federal appeals judge. And McConnell says you can prosecute federal officers if it wasn’t necessary and reasonable for the officer, in the carrying out of their federal duties, to do what they did.
And that ruling has held?
I think the best that can be said is it’s the law of the Tenth Circuit right now. Minnesota is in the Eighth Circuit. So we’re in a place where there’s no obvious binding authority on this issue for state or local prosecutors.
But let’s say that state or local prosecutors in Minnesota decide that that’s a good standard that you laid out from McConnell. Could you potentially have a situation where the question of whether what the federal officials were doing was “necessary and reasonable” would go to court?
I think the way it would have to happen—and who knows if this is how it actually will happen—is that you would have prosecutors in Minnesota bringing an indictment against one or however many officers they believe they can charge. Those officers would then remove the case to federal court under what’s known as the Federal Officer Removal statute, but it would still be a state prosecution. And then I think the next step would be that the officer or officers would move to dismiss on the grounds that they have this immunity. That’s the moment, before this case could really ever get off the ground, that you’d have to have, almost certainly, a federal judge deciding the immunity question, which as you say is a question of both what the standard is and whether the standard is satisfied here.
If we can set aside the specifics of what we have been witnessing the past few weeks in Minneapolis, what do you think the Constitution says on this matter? And what do you think is a proper way for judges to figure this question out?
The missing piece from any effort to tie this conversation to current events is the role that federal-state coöperation has played historically in mooting this question. No history of the United States would tell a story in which the federal government and the states have always got along. But the blue-sky ideal here is that you don’t need these state-level cases—that when it is a close enough call, when a federal officer has acted in a way that raises that many concerns, then the officer would face consequences under federal law first. And so I guess from a structural constitutional-law perspective, what I worry about is how much those federal consequences have disappeared. It is so hard today to use federal law to hold federal officers accountable for violating our constitutional rights. Criminal prosecutions require a President and a Department of Justice willing to prosecute their own officers. And civil liability has been all but foreclosed by the Supreme Court in a series of cases over the past twenty-five years. All that has put pressure on states, whether state prosecutors or state courts through civil suits, to try to find their own ways of filling the gap.
My own preference, and I think the better reading of the Constitution, is that we’re better off with a uniform system of federal remedies, but if the choice is state remedies or nothing, then I think it’s just as clear that the answer should be at least in some cases, state remedies, or else the Constitution can’t be enforced at all.
You recently wrote, “A world in which the Constitution is only enforceable against the federal government prospectively is a world in which the federal government and its officers can do whatever it wants to the people. . . . This is why, for instance, it has proven so much easier to enforce the Second Amendment (where government restrictions are creating forward-looking consequences) than the Fourth (where the violation is usually a one-off).” Can you talk a little bit about the distinction you’re drawing there between the Second and Fourth Amendments?
Yeah, so the law has this long-standing distinction between what the lawyers would call prospective relief and retrospective relief. With prospective relief, the classic example is an injunction where we are trying to stop the defendant, whether it’s the government or a private party, from continuing to do something that’s wrongful. Retrospective relief is when the wrongful act has already ended, and all we’re trying to do is get the defendant to make the plaintiff whole. And for better or for worse the Supreme Court, with some help from Congress, has got us to a place where it is almost impossible to get retrospective relief against the federal government and especially against federal officers, but actually pretty easy to get prospective relief, often in the form of an injunction, such as someone challenging President Trump’s birthright-citizenship executive order to prevent it from being enforced. But when the harm has ended, whether it’s the use of excessive force by a law-enforcement officer or an assault or an unlawful search, those remedies usually are only retrospective, and that’s where it’s become so difficult.
I don’t want to sound naïve and pretend that this Supreme Court or any Supreme Court is just going to call balls and strikes, to quote Chief Justice John Roberts. What are the possible ideological ways that conservative and liberal Justices might approach the question of federal immunity?
It is interesting. There is a bit of an ideological bent to the debate over whether, for example, federal courts can provide remedies for unconstitutional actions by federal officers without an express act of Congress. I actually argued one of the more recent cases, which was decided in 2020, and it split the Court right down ideological lines. I lost five to four. This was the Hernandez case, which is about whether a Border Patrol agent could be held liable for the allegedly unprovoked cross-border shooting of a fifteen-year-old Mexican national. And on the Court there has been, for better or for worse, a deeply ideological split about whether federal courts can provide their own remedies for damages in cases like that.
But the criminal-prosecution question is a little different because it really is two different doctrines running headlong into each other. One of them is executive power, where this Court has obviously been as sympathetic to broad readings of Article II as any of its predecessors. The other is states’ rights, and the conventional principles of federalism under which states are allowed to have their own accountability regimes.
So you have two ostensibly conservative principles running into each other.
One hundred per cent. And that’s why, by the way, I think it is interesting that the most recent leading case on this very topic in the courts of appeal was written by Michael McConnell, because he’s exactly the kind of judge for whom that intersection would pose some interesting quandaries.
I was struck that a federal judge has just ordered the federal government to refrain from “destroying or altering” evidence in the Pretti shooting. Is that normal?
Nothing about this is normal. It is unusual to ask a federal judge to tell the federal government to not do something it already is not allowed to do. The difference is that getting a federal judge to do it brings with it the contempt power. Obtaining an injunction—or, I think it’s a temporary restraining order, for now, in this case—is basically just a way of giving that legal prohibition teeth.
What can the federal government do, though, if it wants to throw a wrench into this? Are there specific things that you’d be worried about?
I’m worried already about, for example, just how thoroughly the federal government ran forensics on the scene of Saturday’s shooting. Just how carefully they documented the witnesses. Did they run, for example, forensics to figure out which guns fired shots? Did they do gunshot residue tests on each of the officers who were present, in terms of their hands and clothing? One of the problems here is this ship may have already sailed, but there’s also the concern that many of the witnesses to whatever happened on Saturday were apparently brought down to the federal building. The concern is the spectre of intimidation—and whether these individuals were told that they could leave at any time and/or consult an attorney. And so I think the concern is that, if the federal government didn’t do everything by the book, that could make it harder in any future prosecution, frankly, by anybody, whether it’s the states, whether it’s this Administration, or a future Administration.
I suppose if you wanted to be really cynical, there’s a way in which intentionally doing things not by the book could screw up any prosecution.
Right. And I think that’s why you saw the state and local authorities run to federal court on Saturday night. We should all hope that it wasn’t necessary.
We don’t need to be naïve about this. There’s no chance that the federal government will prosecute these people.
No, no, no. There’s no chance.
I would also imagine that a reason any case needs to be done in state court as opposed to federal is that the President cannot pardon people in a state prosecution, right?
It’s sadly accurate. And even though a state prosecution of a federal officer would almost certainly end up in federal court, it is still a state prosecution, and so it would still be exempt from the President’s pardoning power. It shouldn’t be the case that we’re worried about reflexive pardons from the President, but that’s yet another reason why a state criminal prosecution might seem attractive to so many people at this particular moment.
While we continue not being naïve, am I correct in thinking that there would be a relatively easy legislative fix for some of these questions? I realize the odds of that happening in the next year are also close to zero.
So, if our goal is to insure that there’s some measure of accountability when federal officers violate our rights, then, yes, Congress could fix that in a one-sentence statute. Congress could create a robust damages remedy for federal officers who violate the Constitution. Congress could have it be either the officers or the federal government who’s liable. Congress could legislate what defenses the officers would and would not be allowed to have in those cases. The politics of that are unfortunately messy, but the law is not.
The criminal prosecution piece is harder. I think it would be very hard for this Congress, at least while we have this Supreme Court, to find ways of making it easier for the federal government to prosecute its own officers in cases where the President doesn’t want to. This is part of why I’ve spent really so much of my career pushing for a more robust damages framework. Damages aren’t perfect in these cases, but a broadly available, meaningful damages remedy would not just be a way of making the victims whole when their constitutional rights are violated—it would also hopefully deter federal officers from engaging in at least some of the conduct that we’ve been seeing over the last year. ♦