A photo of Renée Good displayed at a candlelight vigil in London. Alastair Grant/AP
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If the ICE officer who shot and killed Renée Nicole Good in Minneapolis last week is not prosecuted criminally, or even if he is, can he also be sued?
Legal experts have different takes. Last week I spoke with a police misconduct attorney in Minnesota who seemed hopeful about the odds that Good’s family might face in court. Others I spoke with were somewhat less optimistic. Winning lawsuits against cops who kill “is challenging by design,” as Michelle Lapointe, legal director of the American Immigration Council, an immigrant rights advocacy group, wrote on the group’s website.
To flesh that out, I caught up with Lauren Bonds of the National Police Accountability Project, a national group that works with civil rights attorneys to file lawsuits over police misconduct. Our conversation below, edited for length and clarity, explores the legal hurdles to beating an ICE officer like Good’s killer, Jonathan Ross, in civil court.
It’s notoriously tough to sue police, but it’s even harder when the officer is federal. What are the challenges?
You’re absolutely right: All the problems you have with suing a regular law enforcement officer exist, and then you have additional barriers. There are two distinct pathways to sue a federal officer for misconduct or excessive force: One is a Bivens action—a court-created pathway that allows you to sue federal agents for constitutional violations. And then there’s the Federal Tort Claims Act, a statutory provision that allows for these lawsuits to move forward.
The problem with Bivens is it’s been really, really narrowed in recent years by this particular Supreme Court. First there was Hernandez v. Mesa, a 2020 case where a Border Patrol agent shot and killed a child on the other side of the border in Mexico. And the court said it didn’t fit within the narrow confines of Bivens. And then there was a case in 2022, Egbert v. Boule, that foreclosed any new Bivens action: Basically the court said that this type of civil rights violation is something you can pursue under Bivens, but if it’s anything new, we’re not going that far.
The Federal Torts Claims Act (FTCA) is where more people are going to get relief for violations by federal officers. It basically says that any tort that you would suffer under state law [such as false arrest, assault, or battery] you can sue the federal government for—with vast exceptions: There’s one that comes up a lot for law enforcement cases, the “discretionary function” exception, which says an officer can’t be sued for anything that he or she needs to use discretion for. Courts have done a good job of interpreting that to mean discretion in terms of policymaking decisions, but some courts get it wrong. So those are the two pathways—they’re both narrow, and they’re both complicated.
There’s the issue of qualified immunity for police officers, or even sovereign immunity for the federal government, right?
Sovereign immunity [a legal principle that says the federal government can’t be sued without its consent] wouldn’t come up in an FTCA case, because it’s a statute in which Congress waived sovereign immunity and agreed to be sued under certain circumstances. It does come up as a defense when [the government is] saying, Oh, this case falls within an exception, but they can’t assert it otherwise.
If you were to file a constitutional claim under Bivens, they could invoke qualified immunity, another protection that law enforcement officers have; it asks whether there is case law in the circuit that would have put the officer on notice that their conduct was unconstitutional. [If not, the officer is essentially off the hook.]
A lot of courts have taken that requirement to an extreme place, basically saying it’s got to be identical facts—like there are cases that have been thrown out on qualified immunity because a person was sitting with their hands up versus standing with their hands up. That level of granularity has been applied to defeat civil rights claims. And so it’s a difficult barrier to overcome.
Given how hard it can be to sue, what about criminal charges?
It’s definitely possible. There isn’t any immunity from criminal prosecution that federal officers are entitled to, none that I’m aware of anyway. I know this issue came up when some ICE raids were planned to take place in San Francisco back in early fall, with the DA of San Francisco asserting that she did have authority to pursue criminal action against ICE agents if they broke California laws.
What about the Supremacy Clause? It protects federal officers from state prosecution if they were performing their federal duties, right?
The Supremacy Clause protects federal officers when they’re engaged in legal activity, and so if their conduct is illegal, they wouldn’t be protected. So in Minneapolis, if the officer engaged in a Fourth Amendment violation, he’d be beyond the protection of the Supremacy Clause.
This issue has come up with California, too. The Trump administration is suing California over new state legislation that would create a crime for wearing a mask and obscuring your identity if you’re a law enforcement officer. And it’s suing Illinois [for a state law that allows residents to sue ICE agents in certain circumstances]. Those lawsuits have asserted that the Supremacy Clause makes these [state] laws unconstitutional—that you can’t take any action against federal law enforcement officers under state law.
Have you heard of cases in this past year of ICE officers being sued or prosecuted for misconduct?
I haven’t seen any prosecutions yet. In terms of lawsuits, we’ve seen an increase in FTCA cases against DHS agents.
Regarding the recent killing in Minneapolis, what do you see as the main path to accountability, and the main challenges?
There’s going to be all the standard barriers that we talked about, including the Supremacy Clause defense, particularly because you have so many high-ranking federal officials, including the president and Secretary Noem, who are saying that this shooting was the right thing to do and was consistent with him carrying out his obligations.
On the civil side, this could be a potentially difficult Bivens or FTCA case. I would note, since we’re on the heels of January 6: Ashli Babbitt, the woman who died during the Capital insurrection, filed a FTCA case, or her family did, and got a $5 million settlement from the government. It’s hard to factually distinguish these cases.
The federal government has authority to settle a case like that, but since the Trump administration is taking a very opposing position against Good, the woman who died in Minneapolis, I would be surprised if they would be willing to put money on the table.
