Mastodawn

American citizens have been brutalized, pepper-sprayed, & killed on the streets of #Minneapolis. For many, one particular breakdown is a final, damning cause for despair: Minnesota’s apparent inability to investigate & potentially prosecute the #FederalAgents responsible. The #DHS on Saturday reportedly blocked #Minnesota officials from examining the scene of #AlexPretti’s #shooting. Access was refused even after #state officials got a #judicial search #warrant.

As a result, key forensic #evidence was almost certainly lost. This comes after state officials were excluded from the investigation into #ReneeGood’s death.

#Federal #obstruction of #Minnesota’s #criminal investigation merits more creative pushback from the #state: Leaving investigations in the hands of #DHS alone sends a powerful message to #ICE officers.

#law #Trump #immigration #Constitution #CivilRights #UseOfForce #ExtraJudicialKillings #ICE #CBP #Sturmabteilung

It tells them that even if they effectively execute a #US #citizen who presents no threat on camera on a public street, they will face no consequences—a recipe for future tragedies. The state’s interest in finding a way to at least create some deterrence to deadly federal lawlessness is not just a matter of #justice: It is also a way of keeping its people safe moving forward.

…when a direct path to #justice is blocked, #states need to find a work-around. The federal prosecution of the #Minneapolis officers responsible for #GeorgeFloyd’s death offers a model. E.G., officers Tou Thao, Thomas Lane, & Alexander Kueng were held criminally liable for acts beyond the killing. 1st, they failed to provide medical assistance to Floyd as he was dying. 2nd, Lane & Kueng made misleading omissions, while Kueng also lied to investigators in the immediate aftermath of Floyd’s death.

Drilling down on these facts reveals specific paths forward for #state #prosecutors even when a direct investigation is blocked.

Evidence of these 2 kinds of #crimes has already emerged in the 2 recent #ICE killings. After #ReneeGood was shot, ICE agents blocked a physician from aiding her. #Minnesota #law not only imposes misdemeanor liability for failures to aid in general, but in #shooting cases obligates the person who fired the wounding shot to “render immediate reasonable assistance.”

When a #shooting victim then dies, penalties in #Minnesota for failing to aid the injured person can involve up to 2 yrs imprisonment.

In l #AlexPretti’s case, the #obstruction of key #evidence-gathering steps gives #state #prosecutors another potent opening, especially because #ICE agents acted in overt defiance of a #judicial #warrant. Minnesota has a #criminal #ObstructionOfJustice statute that applies to situations in which someone prevents officers from carrying out official duties.

You don’t get much more official than executing a #judicial #warrant. Concealing #evidence after the fact is a separate offense that also fits what is publicly known about both the #ReneeGood & #AlexPretti cases. The resulting #criminal penalties would attach to anyone who conspired in that concealment. This could reach more senior figures in the #Trump admin who acted to hinder #justice by using #lies & #slander to deflect responsibility &—worse—to score political points from the deaths.

#Minnesota, & other #BlueStates, should also enact new laws that make #federal #obstruction harder. The #AlexPretti case shows that #ICE officials were willing to ignore a #state-court #warrant. Perhaps anticipating that, Minnesota officials went to federal court on Saturday, potentially after the scene of Pretti’s #shooting had been compromised, & obtained a temporary restraining order about #evidence preservation. The legal basis for such orders, however, may be fragile.

#Minnesota & other #states would thus do well to shore up their capacity to get a rapid federal-court injunction against #EvidenceTampering. For technical reasons, there is a specific way to make sure this possibility is always available∶ Enact a #law that allows a state’s atty to seek damages of >$75k against anyone who has violated the constitutional rights of a MN citizen. Then allow the state’s atty to file suit in federal court, & to expeditiously seek a bench warrant to preserve #evidence.

In practical effect, this would be a device to transform ICE’s #obstruction into not just a violation of #state #law, but also of a #federal-court order.

#Criminal #liability by its nature comes too late to stop harms from happening. #States such as #Minnesota should also look to #CivilLaw as a basis for stopping baleful & unlawful #ICE tactics. This also requires some creative thinking—taking a legal tool designed for other purposes & fitting it to our new reality.

Many #states have what’s called a public-nuisance #law. This allows the state to go to court & get an injunction against the use of a property in ways that disrupt life for many around it, such as, for example, if a quarry produces noise & vibrations that make it hard for those in the neighborhood to sleep, or if the odors of a feedlot make using a particular street intolerable.

#States have reached beyond this sort of historical usage recently, employing public-nuisance laws creatively even when the problem is not tied to one specific piece of land. For instance, they have brought public-nuisance suits against opioid makers, gun sellers, companies responsible for lead contamination, & Confederate monuments. Public-nuisance #law has proved a malleable stopgap when other kinds of regulation fail.

It’s not a big leap to see an application here. If fentanyl production or the existence of a Jefferson Davis statue can be legally deemed public nuisances, why can’t a deluge of #violent, #masked, & #armed people flooding the streets of a city, #maiming, #brutalizing, & even #killing along the way? This deluge is perhaps even closer to a classic public nuisance because it involves an activity that impedes the safe & orderly use of public streets.

Minnesota’s public-nuisance #law has a useful wrinkle—one that other #states worried about prospective #ICE deployments would do well to imitate. It allows #attorneys for the state to obtain injunctions against a “criminal gang.” A gang, in #Minnesota law, is simply “any” group of people who repeatedly violate certain #criminal laws. It doesn’t matter whether they work for the Latin Kings or #StephenMiller. What matters is that they create an ongoing risk of #violent #harm to the #public.

Nonilex

A public-nuisance injunction could focus on specific people or tactics, or sweep more broadly. Such an injunction, moreover, would single out #ICE officers’ #unlawful, #violent acts, as distinct from the lawful performance of official duties. Though certain immunities for federal officials are recognized, it is hard to see why they would apply to a public-nuisance injunction focused on #lawless acts.

#law #PartisanCourt #ActivistCourt

That said, there’s no guarantee here∶ #SCOTUS under Chief Justice #JohnRoberts has shown itself willing to create new & unprecedented legal immunities for #federal misconduct without a scintilla of historical support. It could always do so here too.

To be clear, a public-nuisance suit would face daunting odds. It might seem implausible on its face to say #ICE is a “nuisance,” especially before one accounts for the #ReneeGood & #AlexPretti killings. But #states need to reach for every possible tool to meet the moment. And the legal theory behind a public-nuisance ICE injunction stands on firmer ground than the #TenthAmendment suits filed in recent weeks by #Minnesota & #Illinois.

Unlike these constitutional cases, a public-nuisance complaint flexes a well-recognized & historically based exercise of #state #sovereignty. True, its application is novel. But that simply tells us that we live in a moment of new political challenges.

Until now, #states & #cities have been in denial about those challenges. They have not grasped the profound & potentially irreversible rupture in #federal-state relations that’s under way.