Federal Officers Don’t Have ‘Absolute Immunity’ but Prosecution Isn’t Easy

Residents and local officials in Portland are clamoring for accountability after federal agents shot two people on Thursday.

The shooting has put further fuel on growing public demand for an end to the Trump Administration’s aggressive nationwide immigration crackdown.

“We cannot sit by while constitutional protections erode and bloodshed mounts,” Portland Mayor Keith Wilson said. “Portland is not a ‘training ground’ for militarized agents, and the ‘full force’ threatened by the Administration has deadly consequences.”

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The Trump Administration has already sought to portray the shooting as self-defense. Department of Homeland Security spokesperson Tricia McLaughlin said Border Patrol agents had been conducting a “targeted vehicle stop” involving a Venezuelan national, and “when agents identified themselves to the vehicle occupants, the driver weaponized his vehicle and attempted to run over the law enforcement agents.”

The agent, McLaughlin said, fired a “defensive shot.”

The Administration mounted similar claims of self-defense after an ICE officer shot and killed 37-year-old Renee Nicole Good in Minneapolis, Minn., just a day earlier. Videos of the scene, however, contradict the federal government’s narrative, instead appearing to show Good attempting to turn her vehicle away to leave before the ICE agent opens fire. Minneapolis Mayor Jacob Frey promised 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.”

The Administration, however, has pushed back, arguing not only that there was no wrongdoing, but that it wouldn’t even matter if there was. “The precedent here is very simple. You have a federal law enforcement official engaging in federal law enforcement action—that’s a federal issue. That guy is protected by absolute immunity. He was doing his job,” Vice President J.D. Vance said on Thursday, defending the Minneapolis shooter.

Here is what legal experts say about when federal agents are allowed to use force, and whether they can be held accountable for it.

A history of killing

This isn’t the first time that federal agents have shot at people. Since Trump’s crackdown began last July, federal agents have shot people in at least 16 incidents and killed at least four, according to The Trace, a nonprofit news outlet that covers gun violence. Several of the people who were injured or killed were shot while observing or documenting an immigration raid or while driving away from a traffic stop, according to news reports.

But even before Trump returned to the White House, ICE has had a history of violence, for which legal experts said agents sometimes don’t face consequences. ICE agents were responsible for at least 59 shootings from 2015 to 2021, 23 of which were fatal, The Trace reported in 2024.

Last October, Marimar Martinez, a 30-year-old American woman, was shot and injured by a Border Patrol agent when she was driving around a predominantly-Hispanic neighborhood in Chicago and warning people about the presence of federal law enforcement. “Do something, b-tch,” the agent shouted before firing an assault rifle at her, footage of the incident reportedly showed.

In that case, as in the shootings in Portland and Minneapolis, agents claimed that they were defending themselves from a car ramming. The agents arrested Martinez, who survived, but the charges were dismissed after her attorneys showed footage showing that, in fact, agents had rammed her car.

The Trump Administration has repeatedly said that federal agents have the right to defend themselves, and that officers are facing an unprecedented rise in threats.

“Our officers are facing terrorist attacks, being shot at, having cars being used as weapons against them, bomb threats, assaults, doxxing,” McLaughlin told the Los Angeles Times in December.

Reported assaults on agents have increased. The Administration has claimed reports have gone up by 1,300% from 2024 to 2025 and that vehicular attacks in particular have risen 3,200%. According to the LA Times, the increase may be smaller. Between Jan. 21 and Nov. 21 last year, there were 163 cases of assault on federal officers filed in five jurisdictions where the Administration conducted large-scale enforcement operations, a 26% increase from the same period and areas in 2024, the outlet reported.

In at least some of the assaults on federal officers, people have shoved them or thrown objects. A D.C. man was acquitted in November after being charged for throwing a Subway sandwich at a Customs and Border Protection agent. A woman in Portland faces a felony assault charge for hitting a federal officer with a tambourine in October.

There have also been several cases of immigration agents being shot or shot at last year. In July, a group of assailants opened fire on an ICE facility in Alvarado, Texas. That same month, a protester appeared to fire a gun at immigration agents during a raid in Camarillo, Calif. In September, a sniper shot three detainees, killing two, when he opened fire on an ICE field office in Dallas, Texas. And in November, a person fired shots at DHS agents during an immigration enforcement operation in Chicago.

In November, one National Guard member was killed and another seriously injured in a D.C. shooting.

In citing attacks on federal officers, the Trump Administration is “justifying why they need to use extreme force against the people they’re arresting and the public as they interact with individuals on the street,” David Bier, director of immigration studies at libertarian think tank the Cato Institute, told the LA Times. “I think that’s the primary purpose, to say: ‘We’re under attack. We’re being assaulted daily and therefore we need to be able to use extreme force including military support.’”

Federal agents’ authority to shoot

Like other federal agencies, ICE and U.S. Customs and Border Protection also have their own internal standards, which can be used to constrain and discipline agents outside of the courtroom.

For example, a DHS policy statement from 2018 describes the internal standard for use of force by law enforcement officers and agents. In general, agents are “permitted to use force to control subjects in the course of their official duties as authorized by law, and in defense of themselves and others,” according to the memo. An officer “shall use only the force that is objectively reasonable in light of the facts and circumstances confronting him or her at the time force is applied.”

The Fourth Amendment established the constitutional baseline for what is considered “objectively reasonable,” which means that each case is considered based on what a hypothetical “objective” person would do. In other words, the reasonableness of an officer or agent’s use of force is judged “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight,” the memo said. As part of this, courts accommodate for circumstances “that are tense, uncertain, and rapidly evolving,” and in which officers may have to “make split-second judgments.”

The DHS memo from 2018 states that officers are not required to retreat to avoid the reasonable use of force or to wait for an attack before using force to stop a threat. But it also instructs officers to employ de-escalatory tactics to “minimize the risk of unintended injury or serious property damage.” Officers should also avoid putting themselves in positions in which they have to resort to using deadly force, according to the memo.

ICE agents “can’t prevent everything, but they have the ability to de-escalate situations,” Christy Lopez, a professor from practice at Georgetown Law and former senior civil rights litigator at the Justice Department, told The Trace. “Instead, we see the opposite. They’re actually stoking this inordinate amount of fear and this hypervigilance, and they should be trying to tamp it down—but they’re not.”

“The problem here is that, whatever the technical standards might be, the Trump Administration exerts a mixture of direct and indirect control over internal federal bureaucracies, including internal discipline,” says Craig Green, a professor of law and government at Temple University.

Instead, César Cuauhtémoc García Hernández, an Ohio State University law professor, told The Trace that the language and messaging from the Trump Administration has made federal agents more likely to use aggression. ICE officials told agents to be “prepared to take appropriate and decisive action should you be faced with an imminent threat,” according to the New York Times.

“I have full faith and confidence that each of you possess the training and knowledge to exercise the appropriate response,” the Times reported that the Dec. 12 email, signed by Marcos Charles, head of Enforcement and Removal Operations for ICE, read. Observers have raised concerns that the Trump Administration’s push to rapidly hire more ICE agents could lead to oversight in officers’ training standards.

Can federal agents be prosecuted?

State prosecutors can pursue charges against federal officials for actions conducted in their line of duty, Michael J.Z. Mannheimer, a constitutional law expert at Northern Kentucky University’s Salmon P. Chase College of Law, told CNN.

But state law is still limited in that ability so long as the alleged malfeasance is within the agent’s federal duties, says Green. Federal courts would have to agree that the use of force may not have been legally justified in order for state prosecution to proceed, Slate reported. This has happened before, including in the 1990s when a county prosecutor brought charges against an FBI sniper who shot and accidentally killed an unarmed woman in Idaho during an operation. A federal appeals court permitted the state prosecution to proceed, although charges were eventually dropped when the county prosecutor left office.

If local prosecutors were to bring state charges against a federal officer, the officer could also try to claim federal immunity from state prosecution and thereby move the case to federal court, Timothy Sini, a former federal prosecutor in New York, told CNN. 

At that point, the federal judge would have to determine whether the federal officer is protected by immunity. That would depend on the Supremacy Clause, which asks whether the officer subjectively believed the conduct was necessary to carry out federal duties, and whether the officer’s conduct was objectively reasonable under the circumstances.

If an officer is convicted of a state-law crime—regardless of whether the case plays out in federal or state court—the President does not have the power to pardon him.

Federal prosecutors can also bring federal charges against a federal officer. But Green says there’s reason to be skeptical that Trump-appointed U.S. Attorneys and Trump-appointed Department of Justice officials would do that.

“Well-established principles of ‘prosecutorial discretion’ leave federal officials very broad discretion, which is nearly unreviewable, to choose whether they wish to file charges in any particular case,” Green says. “In these circumstances, the Trump Administration will certainly choose ‘not.’”

The investigation in Minneapolis has also been complicated by federal involvement. The Trump Administration has called Good a “rioter” and a “domestic terrorist.” The Minnesota Bureau of Criminal Apprehension planned to investigate the shooting, alongside the Federal Bureau of Investigation, to determine whether any state laws have been violated. But local officials said on Thursday that federal officials have blocked their involvement in the investigation.

“Without complete access to the evidence, witnesses and information collected, we cannot meet the investigative standards that Minnesota law and the public demands,” BCA Superintendent Drew Evans said in a statement. Evans said his agency expects the FBI to share its file with state and federal prosecutors.

The Republican-majority Supreme Court has also narrowed legal avenues to constrain federal officers and agencies. In decisions over the past five years, the Supreme Court has made it harder to obtain a nationwide injunction against a law enforcement agency or sue law enforcement officers for an illegal action, according to an analysis by Vox.

The victims or their families could also file civil lawsuits against the individual. Even then, though, there are challenges, Green tells TIME. Civil lawsuits can take a long time, and often end in settlements without a trial.

The plaintiff would also need to prove that the defendant “violated a ‘clearly established’ right that a ‘reasonable person would have known,’” Green says—a legal doctrine applicable to government officials known as qualified immunity. “Those standards are intentionally rigorous, increasingly so under the Supreme Court’s Trump-era conservative supermajority,” he adds.

Still, “courts have sometimes been willing to set aside qualified immunity in cases where facts are particularly egregious,” Ilya Somin, a law professor at George Mason University and a scholar at the Cato Institute, told CNN. And in the case of the Minneapolis shooting, he noted, the facts “certainly are extremely egregious.”