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 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 19th 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.
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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 cell phone 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.
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