Prosecuting immigration agents
It’s hard, but not impossible, for prosecutors to bring criminal charges against federal agents
Border Patrol agent Lonnie Swartz stood high above José Antonio Elena Rodríguez when he pulled out his gun. Standing in Nogales, Arizona, Swartz could see the rooftops of neighboring Nogales, Sonora twenty-five feet below. It’s almost certain that he could see 16-year-old Toñito too. The teenager had never been to the United States and wasn’t committing any crime. “He was just walking down a street in Mexico,” a federal appellate court would later explain. But for whatever reason, Swartz aimed his gun down and shot toward Toñito. When he ran out of bullets, he reloaded. He hit Toñito in the back eight times and twice more in the head. Another six bullets landed nearby. Toñito died instantly. Federal prosecutors charged Swartz with murder, but a jury refused to convict him.
The government’s decision to prosecute Swartz was highly unusual. It’s the only time I know of in which federal prosecutors have brought a criminal case against an immigration agent because of their on-duty conduct. Prosecutors claimed that Swartz committed second-degree murder, which could have resulted in life imprisonment. After a long trial, a jury disagreed.
Renée Good’s killing by an ICE officer and Alex Pretti’s death after being shot by two Border Patrol agents gives the unusual prosecution of Swartz new relevance.
In October 2012, when Swartz shot Toñito, the Border Patrol’s use-of-force policy allowed agents to use lethal force only when “reasonable and necessary.” Prosecutors argued that shooting an unarmed teenager who was walking on a public road twenty-five feet below and who was separated from Swartz by a steel border wall that itself reaches another twenty-five feet high was neither reasonable nor necessary.
Swartz’s defense attorney, Sean Chapman, attempted to shift the jury’s view to Swartz’s perspective. There was never any question that Toñito was unarmed, but that’s far from all that mattered. Testifying on his own behalf, Swartz explained that he was scared for his safety. He said he was afraid because “he heard rocks hitting the fence, and that a fellow agent said he had been hurt and another agent told a Nogales police officer that his police dog had been hit,” according to a news report.
The jury’s verdict suggests he succeeded. In the United States, jurors aren’t required to explain themselves. The jury announces its decision – guilty, not guilty, or undecided in a criminal case – but, unlike judges, they don’t tell us why. For that reason, trying to figure out why they sided with Swartz is a guessing game.
The Fourth Amendment to the U.S. Constitution limits the federal government’s power to seize people – and death is unquestionably a form of seizure. But a limit isn’t a prohibition. Law enforcement officers, including ICE and Border Patrol agents, are permitted to use violence to carry out their job duties, and that’s exactly what they do daily when they arrest people and handcuff them. If the force used is “objectively reasonable,” the Fourth Amendment permits it. Importantly, the Supreme Court tells us that it’s “the perspective of a reasonable officer on the scene” that matters most. To measure what is reasonable, the Supreme Court explained last year, courts must assess all the circumstances leading to the moment in which the force was used. “A court deciding a use-of-force case cannot review the totality of the circumstances if it has put on chronological blinders,” Justice Elena Kagan wrote on behalf of all the justices.
There is a ton of information about what happened in Minneapolis in the moment that Good and Pretti were killed, but we don’t know much about what happened in the minutes leading to their deaths. The lack of cooperation between federal officials and their counterparts in state and local police suggests that we may never know.
Unlike Swartz, who was charged in a federal court by federal prosecutors, there is next to no chance that the Justice Department under President Trump will criminally prosecute any of the agents involved in killing Good or Pretti.
Whether prosecutors who bring criminal charges work for the federal or state government is key. Federal constitutional law imposes strict limits on state prosecution of federal agents. Back in 1890, the Supreme Court blocked California from prosecuting a U.S. Marshal for killing a man who had threated to assassinate Supreme Court Justice Stephen Field. Since the Marshal’s job was to protect Justice Field so that he could do his work as a member of the court, the justices took the position that allowing state officials to pursue criminal charges against the Marshal would upend the constitutional principle, called Supremacy Clause immunity, that states can’t block the federal government from carrying out its lawful duties. If a state prosecutor were to bring criminal charges against an ICE or Border Patrol agent for nothing more than arresting people suspected of violating immigration law, courts would almost certainly dismiss the case with little difficulty.
But just like law enforcement officers can use force within limits to carry out their duties, state prosecutors can sometimes go after federal officers who act beyond those limits. The Supreme Court, for example, allowed Pennsylvania prosecutors to charge two U.S. soldiers with murdering a man who the soldiers said was stealing copper from a federal building. Since there was some dispute about whether shooting the alleged thief was reasonable, the court let the prosecution move forward in a state court in Pittsburgh. Today a state prosecution of a federal officer would almost certainly wind up in federal court, but the basis legal framework would remain the same: was the federal officer acting reasonably or not?
There is nothing easy about charging federal immigration officers with state crimes allegedly committed while on the job. Evidence matters and getting it is made more difficult if DHS refuses to collaborate with state or local police. After that, lawyers would have to convince a federal judge that state and local officials aren’t just trying to impede the federal government from enforcing immigration laws. They would need to show that they are trying to hold accountable someone who has acted beyond their legal authority—that they acted unreasonably, in the language of the Fourth Amendment.
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. The large pool of evidence, in the form of cell phone recordings, that show exactly what happened in Minneapolis and other cities may prove the missing link. Unless DHS alters course quickly, we are likely to find out as immigration officers harm more people and state and local prosecutors become more willing to use every legal tool at their disposal to protect their residents.