Minnesota Prosecutors Want Evidence. Guess What the Feds Say?

For weeks, we’ve been waiting for charges to emerge from Minnesota in the killings of Renée Good and Alex Pretti by masked federal agents during Operation Metro Surge. The investigation has gone conspicuously quiet.

Now we know why.

Minnesota prosecutors filed a lawsuit Tuesday in federal court in Washington, D.C., that lays out what’s been happening behind the scenes. The federal government has forced Minnesota to run a gauntlet just to obtain basic evidence to move forward: Good’s car, still shrink-wrapped and unexamined in an FBI storage facility in Brooklyn Center, Minnesota; shell casings; forensic evidence; and multiple statements in the wake of the shooting by federal officers.

It turns out that the feds not only have failed to cooperate with the state but have gone to great effort to stonewall the state’s requests, and they continue to do so.

Minnesota has jumped through every procedural hoop the feds have demanded. Even so, the feds’ answer, delivered through a combination of bad-faith denials and contemptuous silence, has been: too bad.

In both the Good and Pretti killings, federal officials on the scene agreed to cooperate. Then the call came from headquarters. President Trump called Minnesota officials “crooked.” Former DHS Secretary Kristi Noem declared the state “doesn’t have any jurisdiction.” Minnesota’s Bureau of Criminal Apprehension was excluded from interviews, turned away from scenes, denied even the names of the masked officers who fired the fatal shots in the Pretti case. In that same case, federal agents also physically blocked state investigators holding a valid judicial warrant.

In excessive force cases, the two sovereigns have always worked in tandem: federal civil rights investigators and state homicide prosecutors pursuing parallel tracks, sharing evidence, coordinating on witnesses. Sometimes the feds go first, sometimes they hang back. Sometimes one sovereign concludes there’s no case under its law, and the other proceeds alone. But they cooperate. The evidence flows.

That is the basic operating assumption of American federalism when a law enforcement officer kills someone on a public street under circumstances that suggest they were not in reasonable fear of deadly force from the victim. That was the assumption here, at least initially until Attorney General Pam Bondi, her deputy Todd Blanche, and company put the kibosh on.

Long-time veterans of the DOJ’s Civil Rights Division report that this is the first time they have ever seen the DOJ try to block state prosecutors from proceeding with a civil rights investigation. From my fairly extensive experience in that area, I can second that.

Minnesota’s lawsuit was preceded by more than a month of jumping through federal hoops to request evidence in the feds’ possession. Prosecutors filed so-called Touhy Requests, the regulatory mechanism for demanding evidence from federal agencies, with DHS, which had possession of the evidence. DHS said, “Not our department; try DOJ.” Minnesota did, starting in early February. To date, DOJ has said ... nothing at all. It has simply never responded.

When the federal government denies a Touhy claim, the recourse is a challenge under the Administrative Procedure Act. Minnesota’s first two claims arise under that statute. The first lays out the long history of cooperation between the two sovereigns and alleges that the failure to provide access to the evidence is arbitrary and capricious. The second is a similar challenge to the DOJ’s continuing non-response, and the attendant delay that frustrates the public’s interest in prosecution of notorious shootings and threatens the degradation of evidence.

Minnesota purposefully chose to bring the case in the district court in Washington, D.C., which provides an important advantage relative to other venues. In most circuits, a Touhy denial gets deferential review to the feds, and even if you win, it’s usually just a remand that lets the agency restate its denial more artfully. But D.C. follows the minority rule, in essence treating an APA claim according to ordinary analysis for granting subpoenas.

It’s the third claim in the complaint that gets closest to the heart of what this case is really about. It’s a direct claim under the 10th Amendment to the Constitution, which effectuates the full sovereignty of the states in our federalist system. In essence, Minnesota is arguing, with good reason, that DOJ is giving it no respect and trying to foil the state’s critical sovereign responsibility to investigate and prosecute a serious crime within its borders.

But while the 10th Amendment incorporates the right principle here, it has no real berth in the Supreme Court’s decisions. The Court has vindicated states’ right under the 10th Amendment when the feds are trying to make them do something, however small; but not, as here, when the states in the name of sovereignty are seeking action from the feds. The doctrine hasn’t caught up with the principle. This case may force it to.

Importantly, even if the lawsuit falls short, it doesn’t spell the end of the prosecutions. The killings are a powerful illustration of how excessive force cases have changed completely in the iPhone era, where nearly everyone on the scene has a good video camera.

I worked on the Rodney King case, where the federal prosecutors had to make do with one grainy video. Here there not only are dozens of excellent videos, but they can be assembled to cover all angles and moments, such as the fatal shot Jonathan Ross fired at Renée Good through the driver’s window. That evidence plus eyewitness testimony can go a long way toward compensating for the absence of, for example, the car. And if the defense tries to make a big deal out of the absence of the evidence the feds have withheld, a court should instruct the jury why it’s not the state’s fault.

Have another look at the videos—images that appalled a nation—and watch the federal agents gun down Good and Pretti on public streets under circumstances that put the lie to the claim that the victims presented deadly threats. Then consider that the DOJ is pulling out all stops to prevent justice from being done, in any court. There is only one appropriate reaction: disgust.