Prosecuting ICE’s Goons Will Be Hard—but Not Impossible

However, District Judge Jack Zouhary ruled that Files could be prosecuted because the immunity extended only to functions “necessary and proper” for officers to undertake their duties, and Files could not credibly claim that trapping a neighbor’s dog in a clearly personal dispute fit the bill, even if he personally felt that the dog was a threat. “This Court must assess Files’ actions under the circumstances as they existed at the time of the trapping incident,” Zouhary wrote. “This Court determines, first, whether Files honestly believed the manner in which he set out to trap Zoey was reasonable and whether that honest belief was objectively reasonable. Files fails on both counts.” (He was nonetheless acquitted later.)

The same logic could be applied to federal agents engaged in immigration operations in which they, broadly speaking, have the authority to engage. Neagle and related case law is the reason that a city or state can’t, for example, prohibit agents from making immigration arrests on their territory, but are agents tear-gassing First Amendment–protected protesters really acting within the scope of their duties? Are agents warrantlessly entering homes to make immigration arrests using necessary and proper force and authority? It doesn’t seem like a huge leap to say that they are not.

Naturally, this is all theoretical. Files is a relatively niche situation, and one where the agent was motivated by personal animus. A state trying to prosecute agents who are carrying out what is pretty clearly administration policy, even if that policy runs beyond their lawful power, is another ballgame, and a completely untested legal theory. In order to test it, someone has to actually slap the cuffs on a federal agent, and someone has to give the order to proceed with that arrest. Are local cops going to arrest their federal counterparts? Are aggressive and heavily armed federal agents, who’ve been given carte blanche by the administration, going to allow themselves to be taken into custody? The White House, the Department of Justice, and the Department of Homeland Security—which have been all too happy to try to punish oppositional cities and states through everything from military deployments to withholding grants—will lose their minds. Who knows how they’d try to retaliate?