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

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

The same logic could apply to federal agents engaged in immigration operations in which they, generally speaking, have the authority to engage. Neagle and related case law is why a city or state cannot, for example, prohibit officers from making immigration-related arrests on their territory, but are officers who throw tear gas at First Amendment-protected protesters actually acting within the scope of their duties? Do agents enter homes without a warrant to make immigration-related arrests using necessary and appropriate force and authority? Saying that’s not the case doesn’t seem like a big step forward.

Of course, this is all theoretical. Files This is a relatively niche situation and one in which the agent was motivated by personal animosity. A state trying to prosecute officers who implement what is clearly administrative policy, even if that policy goes beyond their legal authority, is a different ball game and a completely untested legal theory. To test it, someone has to handcuff a federal agent, and someone has to give the order to make that arrest. Will local cops arrest their federal counterparts? Will aggressive, heavily armed federal agents, to whom the administration has given carte blanche, allow themselves to be arrested? The White House, the Department of Justice, and the Department of Homeland Security – which have been only too happy to try to punish opposing cities and states through everything from military deployment to withholding subsidies – will lose their minds. Who knows how they would try to fight back?