Legal experts say FBI control of ICE shooting investigation may hinder state case
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Legal experts say the FBI’s decision to investigate a federal agent’s killing of Renee Nicole Good in Minneapolis Wednesday without any input from the state has complicated the path to prosecuting the agent responsible for her death.
After Good’s death on Wednesday, the state Bureau of Criminal Apprehension announced that they would be investigating Good’s killing in tandem with the FBI. But on Thursday, Superintendent Drew Evans said he’d been told that the FBI would be the sole investigator and that the state agency had “reluctantly withdrawn” from the investigation.
“The BCA would no longer have access to the case materials, scene evidence or investigative interviews necessary to complete a thorough and independent investigation,” Evans said. “Without complete access to the evidence, witnesses and information collected, we cannot meet the investigative standards that Minnesota law and the public demands.”
Minnesota Attorney General Keith Ellison said in an interview on CNN Thursday that he’s hoping the FBI will reverse course.
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“If federal authorities are saying they won't even entertain a joint and inclusive investigation, that is deeply disturbing,” Ellison said. “My question is: What are you afraid of an independent investigation for?”
Ellison said the state doesn’t need the federal government’s approval to conduct their own investigation.
But restricting the state’s access to evidence and files “hinders but doesn’t make impossible” the state or Hennepin County’s prosecution of the federal agent who killed Good, said Carolyn Shapiro, a professor at Chicago-Kent College of Law and former solicitor general for Illinois.
Shapiro said the bigger question is whether the FBI will share information like autopsy reports or forensic analysis with prosecutors in the state.
“Of course, state investigators would want that information,” Shapiro said, “but even in the absence of it, they can continue to talk to witnesses, they can review all the videos that are available and make their own determination based on the evidence they can gather.”
Hennepin County Attorney Mary Moriarty said in a statement that her office started looking into options as soon as the FBI rescinded the agreement to investigate Good’s killing in collaboration with the state Bureau of Criminal Apprehension.
“We are speaking to our local partners on paths forward that will allow us to review the investigation and be transparent in our decision making," Moriarty said.
It’s a misconception that federal officials can’t be prosecuted by state authorities, said Bryna Godar of the State Democracy Research Initiative at the University of Wisconsin Law School.
She said federal agents can be prosecuted under state law by either state or local prosecutors. But federal agents are given some limited immunity to prosecution.
The court will look at “whether the federal officer was acting in a way that was authorized by federal law and taking actions that were necessary and proper to fulfilling their federal duties,” Godar said. “In other words, were they acting reasonably?”
That process of deciding whether the official is granted immunity can take a very long time. Godar said the immunity claim of a federal agent who shot and killed a woman at the Ruby Ridge standoff in 1992 was litigated until 2001.
“Where we see these cases arising is at these points of tension or conflict between the state and federal government,” Godar said. “Where the federal government doesn’t step in … states do have this important tool to be able to come in and charge federal officers when they’re not acting reasonably within their duties.”
Federal officials charged with crimes often succeed in moving their cases into federal court, as opposed to state court. Godar said that’s allowed if the official can claim they have a plausible defense tied to their federal duties. But even if the case is moved into federal court, the president doesn’t have any power to pardon the federal agent if they’re convicted under a state law.
U.S. Department of Homeland Security Secretary Kristi Noem said the state Bureau of Criminal Apprehension doesn’t have jurisdiction in the case. She described Good’s actions of observing ICE officers during immigration enforcement actions as “domestic terrorism.”
Minnesota Gov. Tim Walz said Thursday that Noem was acting as “judge, jury and executioner” in her public statements about Good’s killing.
