These days, the Office of Immigration and Customs Enforcement (ICE), a division of the Department of Homeland Security, has become an amorphous behemoth, with certain characteristics that hearken back to its original mandate – but with many more that defy easy categorization.
As it was formulated, ICE was a civil organisation (as opposed to criminal), which made a big difference in their enforcement of laws and mandates compared to our present situation.
ICE was formed in 2002 as part of the legislation that created the Department of Homeland Security. Previously, it had existed as two separate departments: the Immigration and Naturalization Service and the United States Customs Service. Both were civil departments under federal jurisdiction, not criminal. Why is this important? Civil enforcement is done through the courts and through things like fines and legal actions (think of the EPA; the EPA does not have a paramilitary arm to enforce the regulations and laws under its jurisdiction), and criminal enforcement generally means that officers can be armed, that force can be used (within reason) to apprehend suspects and offenders, and the courts are usually involved in the enforcement of the statutes and laws, normally prosecuted by the State or Justice Department. As a friend of mine said, “Civil enforcement is not supposed to come with a trigger or carry a death sentence. A civil code does not justify militarized street tactics. We do not need an armed, unaccountable paramilitary agency to enforce paperwork.”
In the formulation of ICE, it was given the mission of enforcing US immigration laws, preserving national security, and protecting public safety. This is highly problematic, having come from two distinctly civil departments; instead of simply enforcing immigration and customs laws, they have been weaponized through the national security and public safety mandates. As a hybrid organization under Homeland Security, it can now carry guns. However, nobody should construe this to mean that lethal force should be commonplace, and certainly not carried out by masked men in the middle of our streets.
As I alluded to in yesterday’s post, ICE resembles the Gestapo or Blackshirts from the 1930s and 1940s. But it has recently come to my attention that they could be equally compared to ISIS. There is a lack of due process for the people they arrest; they “disappear” people from their beds and off the streets; they imprison immigrants (illegal or not) and even US citizens in appalling conditions; they wear masks to conceal their identities; and, they are not answerable to the people, but rather the dictator-in-chief and his close cronies. They now have a budget greater than that of the entire Marine Corps, and they are reportedly as large and as well-financed as the militaries in Ukraine and Israel.
Further, ICE has been guilty of renditioning foreign nationals to other countries, to nations with harsh laws against criminals, and using concentration camps (like Cecot) to house prisoners without the hope of ever being let out. They have been arresting and indefinitely detaining American citizens in their righteous zeal. If I might, I will cite a rather pernicious attitude of some people have expressed on the death penalty; this minority would rather that even an innocent individual be put to death alongside the heinous criminals than have a criminal escape it. (Note: I am not advocating for the death penalty in any way.) This regime has expressly stated that it would prefer that American criminals be deported to other nations with the same concentration camp-like facilities as above, rather than continue to house them here in the United States. Somehow, the illegal deportation of American citizens would be enforced by ICE, alongside the other prisoners they are illegally deporting, with the most likely attempt at jurisdiction to be found under the “preserving public safety” and “protecting public safety” mandates of the organization. And so what about due process for any of the people they “disappear”? In the eyes of ICE and DHS, nobody they arrest in their broad sweeps should be afforded even the most basic of due process, much less civil and human rights. All of the above simply shred the Constitution.
However, the general citizenry is fighting back, giving no comfort to ICE agents as they go to convenience stores, gas stations, restaurants, and hotels. Everyday people gather en masse around ICE as they attempt to raid homes and businesses, or when they attempt to arrest people off the streets. And, as with Renee Nicole Good and others, the citizenry gather on the streets in massive protests designed to send a clear message to Washington that the current state of affairs is unacceptable.
The shooting death of Ms. Good has highlighted the cosplay nature of these ICE agents: Jonathon Ross was filming with one hand and shooting Ms Good in the face with the other. He was distracted from the reason they had gone their in the first place: enforcement of their dubious mandate. ICE/DHS does not allow body cams, so I guess agents want to find means of obtaining “bad ass” video to post on social media in other ways. Ross violated so much, including common decency, and in my opinion should not have been allowed on the streets until the powers-that-be had sent him for PTSD therapy over his traffic stop last year that dragged him 100 yards and caused him to require many, many stitches and undue pain and suffering. Ms Good’s car was the one he was just not going to allow to get away under any circumstances. In my opinion, he is unstable. And in protecting him to the hilt (including emptying his home of all belongings and relocating him elsewhere by the dark of night), these ISIS-adjacent men are closing ranks and refusing to allow one of their own to face the music.
There is so much else that could be said about this, but I will cut it short for now; I’m not meant to write a dissertation here. I just thought that some background into ICE, and the inclusion of some of the particulars of relevant case law might be helpful.
Thanks for reading.
__________
This is the bulk of a post from Facebook following the shooting death of Renee Nicole Good in Minneapolis. I have looked up some of the case law Ms Leach cites and found them to be true to her facts; I include all of the laws and regulations she cited, below. I have lightly edited for readability.
Post per Honey Leach:
There seems to be a lot of Keyboard attorneys online today. So, as an actual attorney, I’d like to cite actual law. The ICE officer in MN violated both protocol and case law. 1) officers are not allowed to fire into a moving vehicle 2) lethal force is not allowed to prevent someone from fleeing 3) case law is clear, an officer cannot intentionally place himself in front of a vehicle and then allege self defense. At best, this officer acted with a reckless disregard for public safety and is guilty of negligent homicide. Federal agents do not have blanket immunity from state laws or criminal prosecution. They can be prosecuted by state authorities for violating state laws if their actions were unauthorized, unlawful, or unreasonable, even if they were on duty.
The concept governing this is called Supremacy Clause immunity. Federal agents are generally immune from state prosecution only if their actions were:
Authorized under federal law; and
“Necessary and proper” to fulfill their federal duties.
_
If a federal agent is charged in state court, they can petition to have their case “removed” to federal court. In federal court, the judge would then determine whether the agent’s actions met the “necessary and proper” standard. If the court finds the agent was acting within the reasonable confines of their duties, the state charges will be dismissed. If not, the state prosecution can proceed in federal court, applying state substantive law. It is unlikely any judge would find his behavior necessary and reasonable. The mere fact that no other officer present unholstered their weapon, and appear shocked as he fired towards them reinforces that fact.
Estate of Starks v. Enyart, 5 F.3d 230 (7th Cir. 1993)
Seventh Circuit – foundational case facts:
Officer stepped in front of a slowly moving vehicle and then shot the driver, claiming fear for his life.
Holding (paraphrased):
“An officer may not unreasonably create a physically threatening situation and then use deadly force to escape it.”
_
Adams v. Speers, 473 F.3d 989 (9th Cir. 2007) Ninth Circuit
Facts:
Officer jumped in front of a vehicle during a stop and then fired.
Holding:
An officer cannot provoke a confrontation and then rely on the danger they created to justify deadly force.
Key language:
The court emphasized that reasonableness includes the officer’s own tactical decisions leading up to the shooting.
_
Thompson v. Hubbard, 257 F.3d 896 (8th Cir. 2001)
Eighth Circuit
Key point:
The court rejected summary judgment for officers where evidence showed the officer moved into the vehicle’s path, creating the perceived threat.
_
Abraham v. Raso, 183 F.3d 279 (3d Cir. 1999)
Third Circuit
Facts:
Off-duty officer shot a fleeing driver.
Holding:
The court stressed that pre-seizure conduct matters and that officers cannot rely solely on the “split second” framing if their own actions escalated the situation.
_
Kirby v. Duva, 530 F.3d 475 (6th Cir. 2008)
Holding:
Deadly force may be unconstitutional where:
The officer fired into a moving vehicle
The officer could have stepped aside
The threat was self-created
The Sixth Circuit explicitly rejected the idea that a moving car automatically justifies gunfire.
_
Adams v. Speers, 473 F.3d 989 (9th Cir. 2007)
Holding:
An officer may not intentionally place himself in danger and then use deadly force to neutralize the danger he created — including firing into a vehicle.
The Ninth Circuit emphasized tactical disengagement as the constitutional expectation.
_
Training & Policy Alignment (Courts Care About This)
Many courts note that modern police training instructs:
Do not fire into moving vehicles
Do not use deadly force to stop a fleeing car
Disengage and contain instead
Courts treat violations of training as evidence of unreasonableness, even if not dispositive.
Leave a Reply