When the Justice Department brazenly tips the scales in favor of the federal government without any investigation, it erodes any semblance of legitimacy, and with it, the rule of law.
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Last year, I resigned in protest from my position as a federal prosecutor with the Civil Rights Division’s Criminal Section, fearing that the Justice Department’s efforts to target political opponents while hampering our section’s ability to confront police abuse would lead to precisely what we are now seeing on the streets of Minneapolis, Minnesota.
As the principal shop within the department responsible for investigating and prosecuting local and federal law enforcement misconduct, hate crimes, and human trafficking, the Criminal Section was (sadly, my use of past tense here is intentional) a critical check against violent abuses of power. Many of us served during Democratic and Republican administrations, including President Trump’s first term, and although priorities shifted, our crucial mission persisted.
This time was dramatically different. The new administration seemed poised at the outset to rapidly replace blind justice with differential treatment based on whether someone was considered an asset or adversary. Those critical of the president would be targeted through pretextual investigations and by the unleashing of federal agents unconstrained by law. Those within the department who openly objected to this unconstitutional paradigm shift would either be transferred, fired, or forced to resign out of principle.
The Unfolding Tragedy in Minneapolis
The risks of such selective treatment and perversion of ethical and professional standards were obvious from the start, but there is arguably no greater manifestation of this inverse proportional standard than the unfolding tragedy in Minneapolis. Hastily trained ICE and CBP officers, encouraged in their aggressive tactics from the highest levels of government, appear to be acting with an increasing sense of impunity and disregard for constitutional guardrails. And now, in the name of a mission supposedly necessary to protect U.S. citizens, two citizens have been shot dead in the streets of an American city.
In response, rather than following decades of good practice, Justice Department leadership took an unprecedented step of actively blocking the Civil Rights Division from investigating the shooting of Renee Good. The department is instead investigating the governor, the mayor, and, yes, even the deceased and her widow. The government now appears to be charting a similar course with the equally troubling shooting of Alex Pretti over the weekend, by immediately engaging in a smear campaign against Pretti and once again declining to launch a civil rights investigation into the shooting.
DOJ’s Traditional Response to Such Incidents
Historically, with these types of incidents, a prosecutor from the Civil Rights Division’s Criminal Section would have flown to Minnesota that same day to start coordinating an investigation with the U.S. Attorney’s Office, FBI, and local authorities, regardless of whether the case ultimately ended in a federal prosecution, a deferral to the state, or no prosecution at all. No one from the Justice Department would publicly opine on the merits, because the Justice Manual – which includes guidelines DOJ prosecutors must follow – demands that prosecutors never pre-judge a case or do anything that might lead to even an appearance of prejudice.
To the contrary, expert civil rights prosecutors and agents would dutifully investigate, research, and follow the facts and the law wherever they lead. The public may not agree with a given outcome, but the thorough, consistent process coupled with the department’s (previous) credible reputation would help preserve the notion that justice was served in a neutral, objective fashion (see e.g., Criminal Section declinations in the Michael Brown and Freddie Gray matters).
But when the Justice Department so brazenly tips the scales in favor of the federal government without any investigation, it erodes any semblance of legitimacy, and with it, the rule of law. That’s what makes the government’s actions in pre-emptively shutting down and prejudicing these investigations indefensible.
The Importance of Federal Investigations
So, why are investigations so important? At the federal level, convicting any officer of excessive force — in violation of the Fourth Amendment’s prohibition on unreasonable seizures — requires proving not only that the officer used objectively unreasonable force, but also that the officer acted “willfully” (essentially, that he knew what he was doing was wrong and did it anyway). This “willfulness” element is one of the highest intent standards in criminal law, and can be very difficult to prove, but it can be established by convincing a jury that the officer acted with specific, unlawful intent (e.g., using physical force to punish someone).
That is precisely why investigations are necessary when evidence indicates potential wrongdoing by an officer, especially when the action results in death and risks undermining confidence in law enforcement as a whole (or in this case, the entire federal government). This is true even if it isn’t readily apparent that a prosecutor will ultimately be able to prove the case, because some of the most critical evidence is often uncovered during the investigation. Simply taking basic investigative steps may yield evidence that leads, appropriately, to a declination, but it also might blow the case wide open.
For example, my former Criminal Section colleagues and our partners in the U.S. Attorney’s Office and the FBI investigated unthinkable allegations against Mississippi officers for breaking into a house and torturing two Black men. The allegations were so outrageous that many simply did not believe they could be true. Without an investigation, these officers would have continued acting with impunity, but the investigation uncovered incriminating communications between the officers (calling themselves “the goon squad”), agreeing in advance that there should be “no bad mugshots,” and devising a coverup. Eventually all six officers pleaded guilty to a slew of federal charges and received sentences ranging from 10-40 years imprisonment.
The Available Evidence Demands Investigations in Minneapolis
Here, too, the readily available evidence is more than sufficient to demand a thorough investigation into the deaths of both Good and Pretti.
Regarding Good’s death, the initial videos present potentially viable defenses, such as the fact that Officer Ross was in front of the car around the time Good began to pull forward (notwithstanding the fact that he put himself in this position contrary to ICE policy).
But there is also evidence suggesting that those defenses could be overcome. For example, Ross’s cell phone video showed Good looking at the officer and calmly saying, “That’s fine dude, I’m not mad at you,” just seconds before she was shot. In addition to the fact that she appeared to be turning away from the officers at a slow speed, her demeanor, tone, and body language in these moments are relevant (although not independently dispositive) to whether Ross acted objectively reasonably in using deadly force.
More critically — mere seconds after the fatal, close-ranged shots rang out — a male voice says, “fucking bitch.” What officers say before and after they use force can be incredibly persuasive evidence about what was in their mind at the time. If prosecutors could establish that Ross was indeed the one who said this, mere seconds after he shot and killed Good, it would provide compelling evidence about his true intent.
Regarding Pretti’s death, there are again potential hurdles to a successful prosecution. Proving the requisite intent element in a police shooting of a civilian possessing a firearm is particularly challenging, as even a genuine fear based on mistake or misperception could create a successful defense. And yet, initial witness videos show a variety of perspectives that sharply conflict with the government’s accounts, and certainly warrant a thorough investigation into the shooting itself, as well as into the aggressive actions of several of these agents leading up to the shooting for potentially violating the First and Fourth Amendments.
Far from showing someone with an intent to “massacre law enforcement,” these videos appear instead to present a compelling narrative of a man who was lawfully observing and filming CBP officers, who was approached and shoved along with two women by the officers, who put himself in front of a woman intending to protect her from pepper spray, who took several close-range shots to the face with pepper spray, who was tackled to the ground by several armed officers with his hands out in front of his head, who was disarmed of his permitted firearm by one agent, and who was then shot in the back repeatedly at point-blank range.
Additionally, it appears that the officer who first shot Pretti was the same one who aggressively shoved the woman to the ground and sprayed them both in the face, suggesting that he was acting out of anger or trying to punish them, evincing willful misconduct. Similar to the video in Good’s death, an officer was allegedly heard saying “boo hoo” to protesters after the shooting. Again, if prosecutors could establish through analysis and witness testimony that one of the officers who shot Pretti said this, it would show a remarkable callousness for human life indicative of unlawful intent.
DOJ’s Extraordinary Reaction to the Minneapolis Shootings
These are just some of the facts bearing on whether any previous Justice Department would ultimately pursue charges in these matters (and many other acts of proliferating ICE misconduct), and these facts are easily gathered by simply scratching the surface of basic due diligence. Yet despite these basic principles and the readily available public evidence, the department has taken the extraordinary and previously unimaginable steps of prohibiting a federal civil rights investigation and preventing the state from obtaining evidence for their own investigation in both the Good and Pretti shootings.
When masked, federal agents shoot and kill under these circumstances, the Civil Rights Division’s Criminal Section has an obligation to at least look into the matter, if the Bill of Rights is to have any meaning. Instead, rather than allow the Criminal Section to fulfill its constitutional duty to provide a check on federal law enforcement abuses, the Justice Department is removing constraints on law enforcement action while simultaneously turning aggressive, masked agents loose on American cities, specifically those where the majority of residents didn’t vote for this president.
Tragically, since the inauguration, the once-storied Justice Department has been helping create the circumstances that led to this predictable tragedy. Many of us tried to raise alarms internally before ultimately resigning in protest, sadly to no avail. The consequences have been far swifter and more extreme than even those most concerned could have imagined, but the risks of unchecked federal police power aimed at political enemies can no longer be written off as hyperbolic.
If the Justice Department is now dead-set on abdicating its responsibility to investigate these shootings and the countless other acts by ICE warranting scrutiny, then state and local officials must pick up the mantel, and the rest of us must continue sounding the alarm and joining in collective, peaceful defense of our neighbors’ inalienable rights until the rule of law is once again restored.
