ICE Kills Again
Lacking any sense of proportionality by immigration officers, victims’ relatives can turn to civil and criminal legal tools
Lorenzo Salgado Araujo. Joan Sebastian Guerrero. ICE killed both within a week. Neither should have died. Policing isn’t a question of doing whatever is permitted and possible. Policing is always a question of balance. To protect public safety in a democracy, law enforcement officers aren’t supposed to enforce the law by any means necessary. Proportionality matters. Under Trump, immigration officers are proving that there is no room for proportionality in their work.
ICE agents shot and killed Salgado Araujo, a longtime Houston resident, and Guerrero, who lived in Biddeford, Maine, while they drove through their home communities. Salgado Araujo, who lacked the federal government’s permission to live in the United, was on his way to work with three other men. Fewer details are available about Guerrero, but it appears that he had lived in Biddeford, on Maine’s southern coast, for a few years with his wife and young daughter. A local immigrant rights group claims Guerrero had a federal work permit. Based on publicly available facts, it is clear that Salgado Araujo was violating immigration law, and had been for many years, when agents fatally shot through the window of the work van he was driving. It’s possible that Guerrero was also violating immigration law. ICE said in a statement that an agent shot him when he “attempted to flee the scene.”
Even assuming that Salgado Araujo and Guerrero were violating immigration law, including trying to escape from immigration officers, ICE agents can’t go around shooting at them. As a legal matter, their immigration status is irrelevant. Most violations of immigration law aren’t crimes. They are instead civil infractions closer to breaking a contract. No matter how much money is at stake, no one is allowed to enforce a contract at gunpoint.
Even those immigration law violations that are crimes – entering the United States without the federal government’s permission, a misdemeanor, or doing that after having previously been deported, a felony – don’t justify a shoot first, ask questions later policing strategy. The reason is simple: proportionality.
At its most basic, proportionality aims to find a consequence suitable to the severity of a legal violation. In his Sermon on the Mount, Jesus famously recalled, “Ye have heard that it hath been said, ‘An eye for an eye, and a tooth for a tooth’.” But just as Jesus cautioned against crude retribution – “whosoever shall smite thee on thy right cheek, turn to him the other also”, Jesus goes on – philosophers have developed a more nuanced appreciation of law’s role in handing out punishments. Jeremy Bentham thought punishment should be balanced. Just as punishment is meant to remedy a harm, we have to acknowledge that it harms the person to be punished as well as others close to that person (for example, spouses and children). To Bentham and others who adopt his utilitarian theory, punishment can only be justified if its overall benefit, including its potential to deter more lawbreaking by others, outweighs its cost. By contrast, Immanuel Kant rejected the argument that punishment could be meted out “to promote some other good.” Instead, he argued that retribution was the best justification for punishment.
Whatever the moral foundation for proportionality, it’s baked into the U.S. legal system through the Eighth Amendment that bars “cruel and unusual punishments” for crimes. As the Supreme Court explained in 1910, “it will be regarded as a precept of justice that punishment for crime should be graduated and proportioned to the offense.” But because most immigration law violations aren’t crimes, the Eighth Amendment is irrelevant. Even if it wasn’t, courts have turned the amendment’s prohibition into something just short of meaningless.
“Proportionality is scarce in immigration law,” legal scholar Juliet Stumpf wrote in an academic article several years. She’s correct, but just because something isn’t required by law doesn’t mean it’s not a good idea as a matter of policy.
ICE and its partners at the Border Patrol are proving unwilling to enforce immigration law in way that matches the infraction. Armed with high-powered weapons and cheered on from the highest echelons of the administration, they barrel through cities with guns at the ready. To the Trump team, every migrant is dangerous. Many citizens are migrants in hiding and others – people like Renee Good and Alex Pretti – are willing accomplices. Without fail, every death is their fault. Time and again, the facts show otherwise. Cell phone videos and doorbell camera recordings, emails between government officials and on-the-record testimony.
Migrants and their allies are outgunned and out financed – literally – but they are not without legal tools to push back. Family members of the two people killed during the last week could go after ICE for financial compensation. As I wrote in January shortly after Border Patrol agents shot and killed Good in Minneapolis:
Under limited circumstances, a federal law called the Federal Tort Claims Act allows private individuals to hold the government liable for violations of state law. Like every other state, Minnesota protects people from experiencing harmful contacts. This is the core of the civil legal right called battery, which is different from the more commonly known crime of battery. Through the FTCA, Congress has permitted private individuals to bring battery claims against the federal government when the battery was allegedly performed by a federal law enforcement officer. If successful, the family could win a financial payout from the government for Good’s death. Importantly, Congress has carved out an exemption for instances in which the federal officer exercised judgment “grounded in the social, economic, or political goals” of federal law.
Separately, Salgado Araujo and Guerrero’s relatives could work with local prosecutors to investigate and potentially prosecute the agents for any crimes they might have committed. In February, after immigration officers killed Pretti, I explained the legal options available to prosecutors.
Immigration officers have immense power to use violence when carrying out their duties. Even when they kill a person, they might avoid criminal punishment, as Swartz did. But just because the multi-step process that prosecutors must navigate to hold immigration agents accountable is hard doesn’t mean it’s impossible when federal officers act as aggressively as we’ve seen recently.
Only a public prosecutor can bring criminal charges in the United States. Relatives might want it, the Mexican government might ask for it, but, with limited exceptions, only state and local prosecutors are empowered to launch a criminal prosecution. That’s what happened in Minneapolis when the local prosecutor charged Border Patrol agent Christian Castro with assault and filing a false police report for having claimed that two migrants attacked him with a shovel.
Neither civil nor criminal pathway to accountability is easy. Both are filled with steep requirements and broad exceptions. Castro, for example, is still in Texas, even though prosecutors want him sent to Minneapolis. None of the agents involved in actually killing anyone have been prosecuted. There’s little chance that a state prosecutor in Texas will pursue criminal charges against the agents involved in killing Salgado Araujo. The state’s top elected officials, all Republicans, have been noticeably silent since he was killed. It’s too early to know what officials in Maine are likely to do.
As the facts unfold, one thing is clear: ICE has killed two more people in the last week. Unless something changes quickly, these are unlikely to be the last two.