ARGUMENT: DANGEROUS TACTICS, DANGEROUS SILENCEDOJ’s Dangerous Silence in the Face of Federal Immigration Agents’ Violent Tactics

The killing in Minneapolis is among the most serious in a series of incidents over recent months involving federal immigration agents’ use of force. Samantha Trepel writes in Just Security thatmany of these incidents raise questions about whether agents used excessive force in violation of the Fourth Amendment and federal criminal law.

The FBI has indicated it is investigating, but Trepel notes that the Department of Justice (DOJ), for its part, has remained disturbingly silent through months of these tactics. “This silence is a dangerous abdication of DOJ’s authority and responsibility. Under 18 U.S.C.§ 242, which makes it a crime for any government official to willfully deprive someone of their constitutional rights,” Trepel writes, adding:

Reports of aggressive, violent, and potentially unlawful tactics by some federal agents have followed each surge of officers arriving in a new city to conduct the administration’s immigration enforcement operations. These have included a military-style, nighttime raid on sleeping families at an apartment complex, the firing of tear gas canisters, rubber bullets, and pepper balls at non-violent protestors, and widespread racial profiling followed by stops and detentions without reasonable suspicion or warrants. State and local officials have decried the unreasonable uses of force in court and in public statements, and at least two Senators have publicly called on DOJ to investigate. Nevertheless, the President and Department of Homeland Security leadership have repeatedly defended their tactics.

Traditionally, the DOJ—in any administration—would seek accountability for unlawful, excessively violent tactics by law enforcement officers, by charging them with violating people’s constitutional rights. However, the DOJ has not announced any charges relating to federal immigration enforcement actions, nor (before Wednesday) had it indicated it had even taken notice.

This is not surprising. By now, it is clear to those paying attention that the DOJ is acting as the administration’s enforcer, prioritizing politicized prosecutions against Trump’s perceived enemies, rather than exercising its independent judgment. And while public attention, understandably, has focused on those high-profile questionable prosecutions, DOJ’s omissions—the cases it is choosing not to pursue—also deserve scrutiny. The agency’s silence about violent tactics by federal agents suggests an apparent abandonment of its criminal civil rights enforcement authority, a silence that is destructive to the rule of law itself.

DOJ’s failure to act signals a troubling abdication of its authority to enforce the constitutional limits of federal agents’ coercive power. The federal statute that is most clearly implicated by aggressive ICE and CBP tactics, 18 U.S.C.§ 242, is a Reconstruction-era law that makes it a criminal offense for federal, state, or local government officials to willfully deprive a person of their constitutional rights. Congress passed the statute as part of a series of laws intended to protect the rights of Black Americans following the Civil War. The statute was among those aimed at enforcing the protections of the newly enacted Thirteenth, Fourteenth, and Fifteenth Amendments.

Investigations and prosecutions under Section 242, while not numerous, are often significant. Career prosecutors under both Republican and Democratic administrations have, for decades, relied on the statute to investigate the conduct of law enforcement officers when needed. DOJ used Section 242 to prosecute the men, including law enforcement officials, responsible for the 1964 murder of three young civil rights activists in Mississippi. In 1993, under the leadership of Attorney General Bill Barr, DOJ obtained indictments against four Los Angeles Police Department officers involved in the 1991 beating of Rodney King, two of whom were later convicted at trial. Nearly three decades later, the first Trump Administration’s DOJ, again under Attorney General Bill Barr’s leadership, opened an investigation into the death of George Floyd. The DOJ later charged four Minneapolis Police Department officers with violating Section 242, ultimately convicting them for violating Mr. Floyd’s constitutional rights.

DOJ’s failure to address apparent uses of excessive force by federal immigration agents, coupled with DHS doubling down on the appropriateness of its violent and constitutionally questionable tactics, makes the situation more dangerous. In prior administrations, agents credibly accused of violating the Constitution by using unreasonable force would commonly be placed on leave, or on desk duty, while the agency (in this case, ICE or CBP) conducted an internal administrative investigation or referred the incident to DOJ. DOJ could then conduct a criminal investigation when warranted and, if no charges resulted, the agency could determine whether it needed to take administrative action or return the officer to enforcement duties. Currently, however, DHS has permitted agents to continue to serve, with few known exceptions—and even lauded their conduct. Meanwhile DOJ’s silence emboldens further aggressive uses of force.

Trepel concludes:

DOJ has the authority, resources, and responsibility to hold federal agents accountable for willful constitutional violations. It has the tools and power to deter further unlawful acts. Unfortunately, DOJ’s current abdication of responsibility puts communities at needless risk and undermines the rule of law itself.