Minnesota Could Prosecute the ICE Shooter. Trump Can’t Pardon Him.

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Shortly after a U.S. Immigration and Customs Enforcement officer shot and killed a woman in Minneapolis on Wednesday, city leaders began looking into whether the officer had violated state criminal law.

Minneapolis Mayor Jacob Frey said, “We collectively are going to do everything possible to get to the bottom of this, to get justice, and to make sure that there is an investigation that is conducted in full.” Police Chief Brian O’Hara followed up by saying that the state’s Bureau of Criminal Apprehension is “investigat[ing] whether any state laws within the state of Minnesota have been violated.”

If they conclude that state law has been violated, the question is: What next? Contrary to recent assertions from some federal officials, states can prosecute federal officers for violating state criminal laws, and there is precedent for that.

Although federal officers do have immunity in some circumstances, that protection applies only if their actions were authorized under federal law and “necessary and proper” in fulfilling federal duties. When federal officers violate federal law or act unreasonably when carrying out their duties, they can face state charges.

States have a long history of prosecuting federal officials for allegedly using excessive force on the job. And when federal courts agree that the force may not have been legally justified, they have allowed the state prosecution to proceed.

In a high-profile incident from the 1990s, for example, an FBI sniper shot and accidentally killed an unarmed woman while carrying out a siege of a cabin near Ruby Ridge, Idaho. U.S. Attorney General Janet Reno decided not to pursue charges, but a county prosecutor in the state did, charging the sniper with involuntary manslaughter. The federal 9th Circuit Court of Appeals allowed the state prosecution to proceed, concluding that there were “material questions of fact” about whether the sniper’s use of deadly force was reasonable. If it wasn’t, the court explained, he would not be immune from state prosecution. (The charges were later dropped after the prosecutor who brought the case left office.)

Similarly, in 1906, the U.S. Supreme Court allowed a state prosecution to go ahead against two federal soldiers who had shot and killed a man they believed was stealing from federal property. As with the Idaho case, key facts were in dispute. The court concluded that if the man had stopped and surrendered, as multiple witnesses attested, “it could not reasonably be claimed that the fatal shot was fired in the performance of a duty imposed by the Federal law,” and the soldiers could be held liable.

There are also a host of cases from the early-1900s prohibition era in which states charged federal officers with murder, attempted murder, or other crimes when they used lethal force to carry out prohibition-related arrests or seize distillery equipment. Again, when federal courts concluded that the federal officers’ use of force appeared unreasonable—such as by shooting into cars that officers believed were transporting alcohol—the courts allowed the state prosecutions to proceed.

To be sure, there are also plenty of cases in which federal courts have instead dismissed state prosecutions on the grounds that the federal officers were properly discharging their federal duties. For example, the foundational Supreme Court case on this type of immunity dismissed a state murder prosecution of a U.S. marshal who had justifiably killed an attacker while protecting a Supreme Court justice. But when an officer’s actions are not authorized by federal law or are not “necessary and proper” to fulfill federal duties—such as when an officer uses unreasonable force—state prosecutions can and do go ahead.

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If state or local prosecutors in Minnesota were to charge a federal officer with a state crime, that case would play out differently from a typical state criminal prosecution.

Most significantly, it would likely take place in federal court rather than state court. A federal statute allows federal officers to move state criminal cases from state to federal court if they have a defense rooted in federal law. Any federal officer charged with a state-law crime for actions committed on the job will almost certainly try to claim federal immunity from state prosecution. That defense will typically suffice to get the case into federal court, even if the immunity claim ultimately fails.

But the move to federal court doesn’t mean that federal players would take over the entire process. The state or local prosecutor would still prosecute the case in federal court. And the criminal charges would still be for state-law crimes. Importantly, this means that if an officer were convicted, the president could not pardon them. The president can pardon individuals only for federal crimes, not state crimes.

Additionally, if state or local prosecutors do bring charges, the pretrial litigation over immunity could well be lengthy. In the Idaho case discussed above, for example, the incidents took place in 1992, and it wasn’t until 2001 that the 9th Circuit ultimately ruled that the case could go ahead. The various lower-court proceedings and appeals took considerable time.

Despite these procedural complexities, the bottom line is that federal officers are not categorically immune from state prosecution for actions carried out while on duty. And states have long demonstrated that they are willing to bring such charges when it comes to excessive use of force.