Analysis by Josh Campbell, CNN
Mere hours after an Immigration and Customs Enforcement officer shot a suspect last month – wounding a member of the arrest team in the process – the top federal prosecutor in Los Angeles effectively exonerated the agent who opened fire.
“PSA: A vehicle is a deadly weapon,” First Assistant US Attorney Bill Essayli wrote in a social media post. “Using it against law enforcement justifies their use of deadly force in self-defense.”
Essayli alleged the man who was shot had rammed his car into vehicles driven by immigration agents trying to arrest him, “causing agents to worry for their safety,” and prompting one of them to discharge his weapon, wounding the man and, inadvertently, a deputy US marshal.
Under policy, immigration agents can use deadly force against someone who poses an imminent threat of death or serious bodily injury. Still, federal law enforcement agencies have historically spent weeks or even months conducting exhaustive investigations before deciding whether an agent’s use of force was appropriate.
But after recent high-profile use of force encounters, federal officials have rushed to offer full-throated defenses of immigration agents, raising questions about whether previously enshrined mechanisms meant to hold law enforcement accountable for wrongdoing have been all but abandoned in President Donald Trump’s second term.
The administration has argued agents are immune to prosecution by state or local officials. And any federal prosecutions seem unlikely due to Trump’s installation of political loyalists atop the Justice Department and FBI – the agencies traditionally tasked with investigating and prosecuting suspected civil rights violations by law enforcement.
And since many immigration agents typically do not wear body cameras — a point of contention that has at times led to intense friction among the enforcers themselves — there has often been scant ability to verify competing narratives following use of force incidents.
“If it’s purely the ICE agent’s word against someone else, game over,” one federal law enforcement source said. “Unless it’s beyond egregious and on film, they are basically untouchable.”
‘Allowed to do whatever the hell they want’
In August, Trump himself effectively gave American law enforcement a green light to use force that may far outpace the severity of the circumstances. In announcing the federal takeover of the Washington, DC Metropolitan Police Department, the president lamented images he claimed to have seen showing protesters spitting on officers.
“I said, ‘You tell them, “You spit, and we hit,”’ and they can hit real hard,” Trump said. “And they’re standing there, and people are spitting in their face, and they’re not allowed to do anything.”
“But now,” he added, “they are allowed to do whatever the hell they want.”
A similar carte blanche signal is being sent to ICE officers and other federal agencies assisting in Trump’s immigration crackdown, DOJ insiders have told CNN. Many are concerned DOJ and the Department of Homeland Security have grown less willing to objectively scrutinize the actions of agents and ensure their rigorous adherence to the Constitution.
Following a recent purge of career DOJ employees, sources also worry that federal prosecutors responsible for evaluating the conduct of agents will choose not to investigate questionable incidents for fear of running afoul of Trump’s political priorities.
“There is a zero chance of an (immigration) agent being criminally charged with this administration,” said one senior DOJ lawyer who was not authorized to speak publicly.
‘They must be held accountable’
While the Justice Department has vociferously defended the actions of immigration agents, state and local officials in some jurisdictions have pushed back, threatening to find ways of holding accountable federal agents accused of wrongdoing.
“Our state and local authorities may arrest federal agents if they break California law,” Democratic Rep. Nancy Pelosi said in a statement last month before Trump called off a planned surge of immigration agents to her San Francisco district.
The former House speaker was backed up by the local district attorney, Brooke Jenkins, who said on social media, “If a federal agent breaks the law, they must be held accountable.”
Chicago has been another flashpoint, where clashes between agents and the public have spurred numerous allegations of excessive use of force.
A Presbyterian minister said he was praying outside a suburban ICE facility during demonstrations there last month when he was struck in the head by pepper balls. Assistant DHS Secretary Tricia McLaughlin said the protesters had blocked an ICE vehicle from leaving the facility and threw rocks and bottles and launched fireworks at agents – a claim the pastor disputed.
Border Patrol agents have also faced scrutiny in the Windy City after text messages appeared to show an agent bragging about his marksmanship skills after shooting a driver accused of ramming the agent’s vehicle five times.
Outside the city, the mayor of the suburb of Evanston announced two investigations after federal agents were filmed striking a person during an arrest. DHS said the agents were conducting an immigration enforcement operation when another vehicle struck theirs, and that a “hostile crowd” gathered around the agents.
City officials were “thinking through options, including going to the Department of Justice Civil Rights Division, or potentially communicating with our state’s attorney to figure out the right way to demand justice for our residents who were assaulted,” Mayor Daniel Biss, a Democrat running for Congress, said.
Responding to federal activity in his state, Illinois Gov. JB Pritzker, a Democrat, signed an executive order establishing the Illinois Accountability Commission to “create a detailed record” of agents’ actions. In doing so, the governor said the federal government was “pushing the boundaries of their authority.”
“Once this all ends, I believe there will be people of good faith who will review what the Commission has recorded and will demand answers and accountability,” Pritzker said.
The police chief of Durango, Colorado, has asked state authorities to investigate an incident last month where a federal officer was seen on video appearing to place a protester who had confronted him in a chokehold and shove her down an embankment.
No known charges have been filed against the protester, who told The Colorado Sun the encounter left her with pain in her head, back and neck.
“It appeared to be an out-of-policy and possibly illegal use of force,” Chief Brice Current told The New York Times.
The Colorado Bureau of Investigation “will investigate whether there were state criminal law violations during the incident,” it said. Like other states, Colorado law requires that use of force by law enforcement officers must be reasonable and appropriate to a particular situation.
Immunity claims dubious, experts say
Threats of possible prosecution by state and local officials have come with the ire of Trump political appointees.
“The Department of Justice views any arrests of federal agents and officers in the performance of their official duties as both illegal and futile,” Deputy US Attorney General Todd Blanche wrote on X.
White House Deputy Chief of Staff Stephen Miller echoed that, directly addressing federal agents on Fox News, saying, “You have federal immunity in he conduct of your duties. And anybody who lays a hand on you or tries to stop you or tries to obstruct you is committing a felony.”
But legal experts say Miller’s claim of absolutely immunity is dubious. US criminal law allows for the prosecution of federal and local officers who violate someone’s civil rights, including by using excessive force.
“It’s true that federal officers have overwhelmingly broad protection when they’re carrying out their official duties,” said Elliot Williams, a CNN legal analyst and former federal prosecutor. “But it’s ludicrous to suggest that a federal officer who breaks state or federal law can’t ever be held accountable for it.”
Experts also note the Justice Department isn’t handcuffed in policing federal agents – just that it now lacks the will to do so.
“It is, to be clear, wrong on its face,” CNN legal analyst Steve Vladeck, a professor at Georgetown University Law Center, wrote in his newsletter, “One First,” of Miller’s comments. The federal government retains the power to prosecute federal officers, Vladeck wrote, even if the Trump administration “is wholly uninterested” in doing so.
As for the states, “There may be political reasons why local or state prosecutors will be wary of bringing such cases,” Vladeck said. “But … the relevant law is far more permissive when it comes to the ability to hold federal officers accountable than Stephen Miller would have you believe.”
Clash over body cams exacerbates the issue
While numerous viral bystander videos have surfaced depicting heated encounters between immigration agents and members of the public, one critical tool often used to identify potential wrongdoing by police officers isn’t widely used in the immigration space: body cameras.
The topic of body cameras has at times caused friction between immigration agents and FBI agents assigned to assist with enforcement efforts, two law enforcement sources familiar with the situation previously told CNN.
While FBI agents have worn body cameras during joint arrest operations per their agency’s policy, some immigration agents not wearing body cameras have expressed concern to their counterparts about having their tactics recorded, sources said.
During one heated exchange, immigration agents who did not want to be captured on body camera footage refused to invite FBI agents along for an arrest operation, one of the sources said.
In Chicago, US District Court Judge Sara Ellis has ordered that agents to wear and use body cameras during confrontations there – a decision the Trump administration is now appealing. Ellis expressed frustration during a hearing last week, indicating that she believed administration officials were being misleading about the safety concerns surrounding protests at an ICE facility and immigration raids in the city.
Trump administration officials have insisted that federal agents are facing unprecedented levels of attack. DHS says it has observed “a 1,000% increase in assaults against ICE officers.”
While instances of violence directed at immigration officers have been documented, legal experts say there must be a distinction between actions they take in self-defense and the questionable, aggressive tactics agents have used against protesters and suspects.
“If the agents come to believe that they have blanket immunity whatever they do, or that citizens have no right to record them, they are more likely to take aggressive informal action, such as grabbing phones or taking news reporters into custody on charges of obstruction (perhaps later quietly dropped),” wrote Walter Olson, senior legal fellow at the libertarian Cato Institute.
At stake, he said, is a possible shift in culture among immigration officers who may now believe they can do no wrong.
“If the agents are hearing a persistent message from their higher-ups of ‘you’re immune no matter what you do,’” Olson says, “it’s up to the rest of us to disabuse them of that error.”
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