Can States Successfully Prosecute ICE Agents For Excessive Force? A Practical Perspective From A Former Police Misconduct Prosecutor

On February 11, 2026, Counsel Daniel Passeser authored the article below titled, "Can States Successfully Prosecute ICE Agents for Excessive Force? A Practical Perspective From a Former Police Misconduct Prosecutor" for Law.com.

In the past few weeks, ICE agents have shot and killed two U.S. citizens in Minneapolis. Federal law enforcement may not fully investigate, much less prosecute, the agents responsible for the shooting deaths in either case. Deputy Attorney General Todd Blanche has said that there is "currently no basis" for a criminal investigation of the agent who shot and killed Renee Good on Jan. 7, and as for the fatal shooting of Alex Pretti on Jan. 24, Blanche stated that a "federal investigation is ongoing but make no mistake—this avoidable tragedy is a result of the total failure of Minnesota's city and state officials who have resisted federal law enforcement and created this escalation." On Jan. 30, after significant public pressure, Blanche announced that the DOJ was opening a civil rights investigation into the Pretti shooting, but stated "I don't want the takeaway to be that there's some massive civil rights investigation that's happening. This is what I would describe as a standard investigation by the FBI ... to the extent it needs to involve lawyers at the Civil Rights Division, it will involve those."

The killings in Minneapolis have thrust into the national spotlight the question of how to hold federal agents accountable for their excessive use of force. Much of the discourse has been focused on civil remedies under either Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), or the Federal Tort Claims Act. But several commentators and a national coalition of District Attorneys known as Fight Against Federal Overreach (FAFO) have raised the possibility of using state criminal laws to prosecute ICE agents. Vice President JD Vance addressed the issue in reference to the Renee Good shooting and stated that "a federal law enforcement official engaging in federal law enforcement action is a federal issue. That guy is protected by absolute immunity. He was doing his job." Vance's claim that ICE agents are cloaked in absolute immunity is simply incorrect—state-level criminal prosecutions of federal officers are viable. But the path to a conviction is more fraught than those calling for such prosecutions have acknowledged, and unsuccessfully bringing such cases may further fuel the narrative that the justice system is a tool to be wielded for political purposes.

One major barrier to prosecuting federal officers is, as the vice president noted, the supremacy clause, which provides immunity for federal law enforcement officers for acts which are necessary to fulfill their duties under federal law, or which a reasonable officer would have believed were necessary to fulfill those duties. Importantly, that immunity would not cover agents who use excessive force against unarmed civilians who are not obstructing their duties, because such force is, by definition, not necessary to fulfill the officer's duties. Some commentators have argued that the videos alone demonstrate that the shootings were unnecessary to fulfill the duties of apprehending undocumented immigrants.

But experience prosecuting and defending excessive use of force cases teaches that overreliance on video can backfire. When prosecutors aggregate video from multiple viewpoints and slow it down to prove that there was no threat to the officer at the moment he fired his weapon, they often prove the defendant's point for him. The defense in excessive force cases is typically that the agent made a split-second decision in chaotic circumstances with incomplete information. Many law enforcement officers have won defense verdicts by arguing that while the victim may not appear threatening in the calm of the courtroom, with slow-motion video and multiple angles, the officer nevertheless acted reasonably under challenging circumstances.

Excessive force, in either the civil or criminal context, is a fact-specific inquiry into what a reasonable officer would have done under the circumstances. In addition to video of the incident, a prosecutor would typically call the defendant's supervisor, a witness from the academy, and an investigator from the Department's internal affairs bureau to explain use of force policies, training materials, and to go over the video with the jury to compare what the defendant did to what should have been done.

This approach, unfortunately, requires at least some buy-in by the relevant law enforcement agency. If the department's position is that the officer did nothing wrong, the testimony of supervisors, the training academy officials and internal affairs investigators would undermine the prosecution's case. I am not aware of any prosecution against an officer for excessive force in which the law enforcement agency's official position was that they had investigated the incident and determined that the officer acted properly. State prosecutors who charge an ICE agent would have to argue that he used unnecessary force to accomplish the agent's duties, despite potential testimony from that agent's team, supervisor, and Department supporting his actions.

Prosecutors will also run into barriers attempting to question the other members of the agent's team and his supervisor to find out what their testimony will be so they can prepare to refute it, or to obtain documents regarding the incident. When prosecutors investigate and prosecute police misconduct, depending on the state, they may be able to use a grand jury to compel testimony, or ask the department to compel a statement from a police witness, where termination is the consequence for non-compliance.

Here, DHS has already blocked Minnesota investigators from investigating the Renee Good shooting, leading the Minnesota Bureau of Criminal Apprehension to say that "without complete access to the evidence, witnesses and information collected, we cannot meet the investigative standards that Minnesota law and the public demands." State prosecutors cannot compel federal agents to testify in the grand jury or produce documents, video footage, incident paperwork, or ballistics evidence held by a federal law enforcement agency. Instead, they would have to submit a "Touhy request" to DHS. See Touhy v. Ragen, 340 U.S. 462 (1951). DHS can decline to comply with a request based on such vague factors as "the need to conserve the time of Department employees for the conduct of official business" and "whether compliance would have an adverse effect on performance by the Department of its mission and duties." See 6 C.F.R. Section 5.48(a).

Another issue is identifying the defendant. To convict, there must be some evidence at trial that the specific defendant on trial is the one who committed the crime. DHS may have publicly identified the officers involved, but the state cannot compel DHS employees to testify at the trial. Many ICE agents have been conducting their operations while masked and are not required to wear identification during enforcement. Prosecutors may have excessive force by a masked agent captured on video and seen by multiple civilians yet not have a single witness who is able to point out a particular defendant as the one who used the force. Without the identification of a particular defendant made with evidence admissible at trial, any prosecution would be dismissed before reaching a jury.

So, what can states do to make prosecutions of ICE agents easier? First, state law enforcement should be present at demonstrations. If a Minnesota police officer can testify that he personally witnessed the use of force and immediately placed the ICE agent under arrest or obtained his identification, or that a civilian pointed out the agent and he was immediately placed under arrest, that would solve the identification issue. Some state law enforcement agencies also employ former federal law enforcement officers who could testify about federal training on appropriate use of force. A state prosecutor considering bringing such a case should make sure they have such a witness available who is willing to testify that the force was unnecessary, even if DHS does not agree. State prosecutors would also be wise to attempt to pursue joint investigations with the federal government wherever possible, even where the State has no confidence that the federal investigation is being conducted in good faith, because it may be the only way to obtain documents, video, and witness statements. They should also enlist their congressional representatives to apply public pressure in the event that DHS stonewalls them on Touhy requests. Finally, if there is a concurrent civil action under Bivens or the Federal Tort Claims Act, the victim's family may be able to obtain discovery that could be shared with state prosecutors.

State prosecutions of federal agents must be undertaken with great care. In the current climate, they are sure to draw national attention and vigorous pushback from the federal agency. While much has been written about the federalism implications of such prosecutions, consideration must also be given to the practical difficulty of building a case in the face of opposition by the relevant law enforcement agency.

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