Barry Friedman and Stephen I. Vladeck write:

In the wake of another fatal shooting by federal immigration officers in Minneapolis, many people are wondering what can be done. The answer has been right in front of us all along.

Despite the incredulity with which some legal observers meet the idea, state and local prosecutors can prosecute federal officials for violating state criminal laws. Prosecutors should be gathering and securing evidence and seriously considering filing charges — sooner rather than later.

Not every prosecution will succeed, and all will face obstacles that are built into our legal system. But critically, bringing these state and local prosecutions could produce deterrent effects that are so desperately needed now.

U.S. law, at least theoretically, provides a range of options for holding government officers accountable; the problem is that many of those options are unavailable in practice where federal officers are concerned.

Consider, for instance, federal criminal prosecution — which should be an option for federal officers who commit murder. As recently as 2019, the first Trump administration told the Supreme Court that federal criminal prosecution would be the appropriate remedy in cases in which an officer used lethal force without justification.

But the current administration didn’t investigate the Jan. 7 killing of Renee Good, and it has already stated that the Department of Homeland Security (which has no experience investigating law enforcement shootings) will run the investigation into the killing of Alex Jeffrey Pretti. A future president could potentially pursue charges for an offense — like the recent shootings of Ms. Good and Mr. Pretti — that has no statute of limitations. But that assumes President Trump won’t first pardon the responsible officer(s).

What’s more, a series of decisions by the Supreme Court has made it all but impossible to hold federal officers liable for damages in federal lawsuits for violating our constitutional rights — such as in a February 2020 decision involving a Border Patrol agent who shot and killed an unarmed teenager without provocation.

Instead, the historical backstop for a lack of federal accountability, going all the way back to the founding, has been state law. States prosecuting federal officers for crimes committed in the course of their federal duties would certainly face complications, but those hurdles would not be insurmountable.

One such complication: The federal officer charged by state prosecutors for a crime committed while on duty could move any such case to a federal court. But that would simply change the courthouse (and the judge and the jury pool). State prosecutors would still be seeking to enforce state law — which, among other things, means that any conviction would not be subject to the president’s pardon power. [Continue reading…]