American citizens have been brutalized, pepper-sprayed, and killed on the streets of Minneapolis. For many, one particular breakdown is a final, damning cause for despair: Minnesota’s apparent inability to investigate and potentially prosecute the federal agents responsible. The Department of Homeland Security on Saturday reportedly blocked Minnesota officials from examining the scene of Alex Pretti’s shooting. Access was refused even after state officials got a judicial search warrant. As a result, key forensic evidence was almost certainly lost. This comes after state officials were excluded from the investigation into Renee Good’s death.
Federal obstruction of Minnesota’s criminal investigation merits more creative pushback from the state: Leaving investigations in the hands of DHS alone sends a powerful message to ICE officers. It tells them that even if they effectively execute a U.S. citizen who presents no threat on camera on a public street, they will face no consequences—a recipe for future tragedies. The state’s interest in finding a way to at least create some deterrence to deadly federal lawlessness is not just a matter of justice: It is also a way of keeping its people safe moving forward.
[Robert F. Worth: Welcome to the American winter]
This is not a completely novel situation. Criminality is often shielded by large organizations, and clever lawyers have come up with clever strategies for dealing with it. For example, in the early 20th century, prosecutors resorted to pretextual indictments to go after the mob—the tax-evasion case against Al Capone being the most famous such prosecution. Because prosecutors could not scrape together evidence of his core crimes, Capone was convicted first of contempt of court and then of tax evasion.
Now, as then, when a direct path to justice is blocked, states need to find a work-around. The federal prosecution of the Minneapolis officers responsible for George Floyd’s death offers a model. For example, the officers Tou Thao, Thomas Lane, and Alexander Kueng were held criminally liable for acts beyond the killing. First, all of them failed to provide medical assistance to Floyd as he was dying. Second, Lane and Kueng made misleading omissions, while Kueng also lied to investigators in the immediate aftermath of Floyd’s death. Drilling down on these facts reveals specific paths forward for state prosecutors even when a direct investigation of the killings is blocked.
Evidence of both these two kinds of crimes has already emerged in the two recent ICE killings. After Good was shot, ICE agents blocked a physician from aiding her. Minnesota law not only imposes misdemeanor liability for failures to aid in general, but in shooting cases obligates the person who fired the wounding shot to “render immediate reasonable assistance.” When a shooting victim then dies, penalties in Minnesota for failing to aid the injured person can involve up to two years’ imprisonment.
In the Pretti case, the alleged obstruction of key evidence-gathering steps gives state prosecutors another potent opening, especially because ICE agents acted in overt defiance of a judicial warrant. Minnesota has a criminal obstruction-of-justice statute that applies to situations in which someone prevents a police officer or other agents from carrying out their official duties. You don’t get much more official than executing a judicial warrant. Concealing evidence after the fact is a separate offense that also fits what is publicly known about both the Good and Pretti cases. The resulting criminal penalties would attach to anyone who conspired in that concealment. This could reach more senior figures within the administration who acted to hinder justice by using lies and slander to deflect responsibility and—worse—to score political points from the deaths.
Minnesota, and other blue states, should also enact new laws that make federal obstruction harder. The Pretti case shows that ICE officials were willing to ignore a state-court warrant. Perhaps anticipating that, Minnesota officials went to federal court on Saturday, potentially after the scene of Pretti’s shooting had been compromised, and obtained a temporary restraining order about evidence preservation. The legal basis for such orders, however, may be fragile. Minnesota and other states would thus do well to shore up their capacity to get a rapid federal-court injunction against evidence tampering. For rather technical reasons, there is a very specific way to make sure this possibility is always available: Enact a law that allows a state’s attorney to seek damages of more than $75,000 against anyone who has violated the constitutional rights of a Minnesota citizen. Then allow the state’s attorney to file suit in federal court, and to expeditiously seek a bench warrant to preserve evidence. In practical effect, this would be a device to transform ICE’s obstruction into not just a violation of state law, but also of a federal-court order.
Criminal liability by its nature comes too late to stop harms from happening. States such as Minnesota should also look to civil law as a basis for stopping baleful and unlawful ICE tactics. This also requires some creative thinking—taking a legal tool designed for other purposes and fitting it to our new reality.
Many states have what’s called a public-nuisance law. This allows the state to go to court and get an injunction against the use of a property in ways that disrupt life for many around it, such as, for example, if a quarry produces noise and vibrations that make it hard for those in the neighborhood to sleep, or if the odors of a feedlot make using a particular street intolerable. States have reached beyond this sort of historical usage recently, employing public-nuisance laws creatively even when the problem is not tied to one specific piece of land. For instance, they have brought public-nuisance suits against opioid makers, gun sellers, companies responsible for lead contamination, and Confederate monuments. Public-nuisance law has proved a malleable stopgap when other kinds of regulation fail.
It’s not a big leap to see an application here. If fentanyl production or the existence of a Jefferson Davis statue can be legally deemed public nuisances, why can’t a deluge of violent, masked, and armed people flooding the streets of a city, maiming, brutalizing, and even killing along the way? This deluge is perhaps even closer to a classic public nuisance because it involves an activity that impedes the safe and orderly use of public streets.
Minnesota’s public-nuisance law has a useful wrinkle—one that other states worried about prospective ICE deployments would do well to imitate. It allows attorneys for the state to obtain injunctions against a “criminal gang.” A gang, in Minnesota law, is simply “any” group of people who repeatedly violate certain criminal laws. It doesn’t matter whether they work for the Latin Kings or Stephen Miller. What matters is that they create an ongoing risk of violent harm to the public.
A public-nuisance injunction could focus on specific people or tactics, or sweep more broadly. Such an injunction, moreover, would single out ICE officers’ unlawful, violent acts, as distinct from the lawful performance of official duties. Though certain immunities for federal officials are recognized, it is hard to see why they would apply to a public-nuisance injunction focused on lawless acts. That said, there’s no guarantee here: The Supreme Court under Chief Justice John Roberts has shown itself willing to create new and unprecedented legal immunities for federal misconduct without a scintilla of historical support. It could always do so here too.
[Read: ICE is failing the legitimacy test]
To be clear, a public-nuisance suit would face daunting odds. It might seem implausible on its face to say ICE is a “nuisance,” especially before one accounts for the Good and Pretti killings. But states need to reach for every possible tool to meet the moment. And the legal theory behind a public-nuisance ICE injunction stands on firmer ground than the Tenth Amendment suits filed in recent weeks by Minnesota and Illinois. Unlike these constitutional cases, a public-nuisance complaint flexes a well-recognized and historically based exercise of state sovereignty. True, its application is novel. But that simply tells us that we live in a moment of new political challenges.
Until now, states and cities have been in denial about those challenges. They have not grasped the profound and potentially irreversible rupture in federal-state relations that’s under way. They have moved slowly, encumbered by a belief that a reversion to the old ways of federal-state cooperation might still be possible. The killings of Renee Good and Alex Pretti—and the federal response to those killings—ought to put this lingering nostalgia to rest. A return to the days of state-federal cooperation will not happen unless the states reassert themselves to protect their citizens and punish federal lawlessness.
