Recent discussions surrounding the legal protections afforded to federal officials, particularly Immigration and Customs Enforcement (ICE) officers, have raised questions about the extent of their immunity from state prosecution. Most people believe these officials to be fully immune in carrying out their responsibilities. As legal experts point out, this assumption is a dangerous misconception. Federal officials are not per se immune from state criminal prosecution, even when acting in their official capacity.
The Supremacy Clause of the U.S. Constitution is at the center of this battleground. And, importantly, under the classic preemption doctrine, federal laws always trump any contradictory or inconsistent state law. That doesn’t mean you’re completely immune from state prosecution. Past cases illustrate the strangeness of this issue. They together paint a complex legal picture that varies widely depending on the unique circumstances of each case.
Background on Federal Immunity
The origins of immunity from state criminal prosecution for federal officers goes back to an 1890 Supreme Court decision. Instead, this precedent created a bright line rule. States are prevented from bringing actions against federal agents for violating federal laws as long as agents remain within the outer bounds of their duties. In 1990, a federal judge ruled an important precedent. They concluded that because the customs agent was pursuing a drug-smuggling vehicle, he could not be tried by any state court for speeding.
This immunity is not without limits. In 1990, a U.S. Marine was not granted immunity after causing a fatal car accident while driving in a military convoy in North Carolina. This case emphasized the need to consider the context of an agent’s behavior. Arguably its most consequential role is determining whether they are safe from state-level counter-prosecution.
“In short, while Supremacy Clause immunity grants federal officials a partial shield from state prosecution, that immunity is not absolute,” – Bryna Godar.
Specialists such as Bryna Godar underscore that federal officials are nonetheless insulated by the Supremacy Clause. Contrary to popular belief, these protections do not extend to all actions they take in the course of their work.
Recent Developments and Legal Precedents
In 2024, a federal judge took the spotlight by convicting a U.S. Customs and Border Protection agent of murder. According to DOJ, the border agent was sentenced to federal prison for repeatedly using excessive force against two people at the southern border. This ruling reminds us that federal officials can be held accountable for their misconduct. Further, they need to understand that their ‘tough job’ does not immunize them from accountability.
The story of David Neagle, a U.S. Marshal turned assassin, provides an important counterpoint to this legal debate. He used his service revolver to shoot and kill a man who was attacking a Supreme Court justice. California law enforcement officials arrested Neagle and charged him with murder. In the end, the court found that what he did was justified under U.S. legal statutes. NGFA’s case underscores the need to protect the delicate balance between federal authority and the prerogatives of state law enforcement.
“The Department of Justice views any arrests of federal agents and officers in the performance of their official duties as both illegal and futile,” – Todd Blanche.
Chicago has been ground zero for the latest round of increased immigration enforcement. This new wave of activity came after the Trump administration’s mass enforcement, which resulted in more than 3,000 arrests.
Legislative and Executive Responses
Illinois Governor JB Pritzker is doing something about the dangerous precedent set by federal law enforcement in recent protests. He signed an executive order creating the Illinois Accountability Commission. The commission’s ultimate goal is to record federal law enforcement officials’ actions that may be prosecuted down the line. This creation of a new office is a sign of increasing concern about accountability and oversight over the actions of federal agents.
Thank God that for once, recently, Federal District Judge Sara Ellis took the side of reason and Justice. She ordered that immigration agents stop using tear gas and other forms of riot control unless people are an imminent danger. Yet this unified order encountered strong resistance, when a federal appeals court stayed its implementation on a temporary basis.
Legal experts essays are still arguing about the meaning of these legal standards. Steve Vladeck remarked on the complexity of immunity: “That’s a generous standard, to be sure. It is by no means a get-out-of-prosecution-free card.” He is right to highlight how local law enforcement agencies are empowered to arrest people they have probable cause to believe they committed a state crime. This is the case no matter the person’s federal connection.
“For local or state authorities to arrest someone who they have probable cause to believe committed a state crime,” – Steve Vladeck.
