This morning, ICE agents shot and killed a woman in Minneapolis. The agents, part of a Minnesota surge designed by the administration to harass the local Somali immigrant population and, by extension, keep media focus on a day care scandal that conservatives recently “uncovered” even though the mainstream media had covered the case for over a year. This political theater has now cost a woman her life and, because “being law enforcement means legally never having to say you’re sorry,” there will likely be no consequences for this.
Masked ICE officers approach a Honda Pilot stopped on Portland Avenue. The driver was a 37-year-old U.S. citizen working as a legal observer. She was not the target of any law enforcement investigation or activity, according to Minneapolis Police Chief Brian O’Hara.
Video of the incident shows one officer tell the driver to “get out of the f*cking car” and trying to open the door. Another seems to be ordering her to leave. The driver then backs up and as she drives away from the officers, an officer fires three shots. The woman slumped over in her seat and was later pronounced dead at Hennepin Healthcare.
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DHS spokesperson Tricia McLaughlin said the woman “weaponized her vehicle, attempting to run over our law enforcement officers in an attempt to kill them.” Homeland Security Secretary and dog murderer Kristi Noem called it “an act of domestic terrorism,” a wild claim to make about a slowly departing SUV on the day after… JANUARY 6. The Party told you to reject the evidence of your eyes and ears. It was their final, most essential command.
Mayor Jacob Frey, who had actually watched the video, described the DHS press spin succinctly. “That is bullshit.”
He’s right, not that it will end up mattering.
It was also the inevitable result of a government lowering its standards to the bottom of the ocean to arm any aspiring Dirty Harry with a pulse and a burning desire to harass and beat anyone based on race. They don’t even have to pretend it’s not just about race thanks to Brett Kavanaugh! We’ve been treated to video of ICE agents fumbling their guns and waving them at innocent bystanders and running over people with their cars. The agency has struggled so badly to meet Trump’s hiring goals that it eliminated age requirements entirely (18-year-olds welcome!). Reports indicate that one-third of recruits at the Federal Law Enforcement Training Center failed a modest physical fitness test. Half failed an open-book, open-notes test on immigration and constitutional law.
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Who fails an open-book, open-notes exam?
The administration will make sure the man who killed this woman in cold-blood this morning won’t face criminal prosecution. Hennepin County Attorney Mary Moriarty says she’s pushing for a local investigation. The FBI and Minnesota Bureau of Criminal Apprehension are supposedly looking into it. But federal agents enjoy broad protections from state prosecution, and this Justice Department under this administration isn’t exactly eager to hold ICE accountable for anything.
For what it’s worth, Trump’s post includes a video clip of the shooting where the ICE agent who is “hard to believe he is alive” got up next to her car after backing up and beginning to go the other way. It’s in super-duper slow mo in order to obscure the fact that the car was inching forward when the agent was so grievously… near it.
Yeah, Trump’s going to give the guy a medal at his pardoning ceremony. Probably the Purple Bone Spur or something.
But even a civil effort to discourage dangerous — and in this case, deadly — incompetence or abuse must deal with qualified immunity, the court-invented doctrine shielding government officials from the law unless they violate “clearly established” constitutional rights. And if you’re wondering what qualifies as “clearly established,” the answer is: basically nothing!
Because the courts have come to a dangerously dystopian consensus that the law does not “clearly establish” rights if the exact scenario of police misconduct has never been ruled on before… which means they can’t rule on it now! It’s a situation that Kafka would dismiss as too over-the-top.
Courts have held that qualified immunity protects officers who arrested someone over satirical Facebook posts. It protects officers who tased a man covered in gasoline, setting him on fire. It protects officers who shot unarmed 10-year-olds in their front lawn while aiming for a “non-threatening” dog. All because no one had ever committed those precise abuses before.
Qualified immunity also asks whether a “reasonable officer” would have known their conduct was unlawful. But what counts as “reasonable” for officers barely passing open book con law exams?
So now you have a rapidly recruited and questionably vetted force, built off warlike recruiting pitches, promised cushy federal protections plus a doctrine that says, “Don’t worry, you’ll never face civil liability unless someone somewhere has already litigated a situation just like this one.” Even if the agents didn’t kill anyone today, this is a noxious combination that incentivizes reckless action — killing an innocent bystander was an inevitability.
Usually, these cases deal with state law enforcement avoiding federal civil rights laws based on qualified immunity — a doctrine that stems from a clerical error. As Cardozo Law professor Alexander Reinert uncovered, the original text of Section 1983 — the civil rights statute at issue — specifically stated that officials couldn’t hide behind any state common law protections for law enforcement. Which makes sense because what would be the point of a federal civil rights law, passed during Reconstruction, if it didn’t supersede state law. But when someone compiled the federal statutes in 1874, they just… left that part out. Oops.
Here we have a federal law enforcement officer killing a woman, so it should be an easier question: of course the federal Congress who passed this law did not intend to render it inapplicable to the federal government. Yet, the Supreme Court went ahead and applied the whole rickety qualified immunity doctrine to federal agents. So here we are with a scriveners error creating a nonsense doctrine to protect state law enforcement that’s now clumsily bolted onto federal agents. Not that Bivens — the basis of a citizen’s recourse against federal actors — has much juice left in it anyway, but that’s another legal and moral failing of this Supreme Court. Based on what’s been happening with Bivens, it’s arguable that victims have a better chance holding a state officer accountable.
Congress could get rid of this protection for ICE agents — there was a bill to do just that last year — but Congress has its hands full keeping the Epstein files from getting out.
No one in a position to address this injustice will do anything about it. Because “law and order” politicians like their law enforcement unfettered by accountability. And so officers keep shooting and courts keep shrugging. Even while families have to bury their loved ones killed over this doctrine.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.