WEBVTT
00:00:00.640 --> 00:00:04.160
Hello, this is Arthur Busch, and you're listening to Radio Free Flint.
00:00:04.160 --> 00:00:05.919
Thank you for joining us today.
00:00:05.919 --> 00:00:07.839
This is our podcast.
00:00:07.839 --> 00:00:32.159
Today we'll be joined by uh Sarah James and Vance Ellis, who will talk to us about the law as it relates to the prosecution of a federal agent or FBI agent, homeland security agent who might have engaged or been involved with a shooting that resulted in a homicide.
00:00:32.159 --> 00:00:36.880
So without any further ado, let's get to the story itself.
00:00:36.880 --> 00:00:47.920
In the American criminal justice system, the cameras lie, and when a bank gets robbed or a high profile shooting hits the news, it's the federal jackets you see first.
00:00:47.920 --> 00:00:52.799
The FBI or perhaps homeland security agents racing to the scene.
00:00:52.799 --> 00:01:04.799
They have FBI plastered across their blue jackets or maybe police labeled on the back of their outfits in tactical gear.
00:01:04.799 --> 00:01:11.120
The TV crews, of course, are tracking every step as if the case belongs to Washington DC.
00:01:11.120 --> 00:01:16.719
But any county prosecutor like myself who's been around a while knows the truth.
00:01:16.719 --> 00:01:23.040
In most of those cases, the performance is federal, but the prosecution is definitely local.
00:01:23.040 --> 00:01:39.439
The handoff happens quietly with a phone call or a backroom meeting, and the file lands on a state prosecutor's desk because that is where most all criminal cases in our country actually live.
00:01:39.439 --> 00:01:46.560
Now the performative cosplay by the feds misleads and hides some basic facts.
00:01:46.560 --> 00:01:55.840
One, ninety percent of all criminal prosecutions in America are brought by state and local prosecutors, not by the federal government.
00:01:55.840 --> 00:02:02.799
Two, federal courts handle only a tiny fraction of the nation's criminal caseload.
00:02:02.799 --> 00:02:14.960
That's about sixty to seventy thousand federal sentencings a year, and that's versus millions of state felony cases alone and many millions of misdemeanors.
00:02:14.960 --> 00:02:22.719
I want to talk to you about something you might not know unless you've been in the system, and that is the good old boy's rule.
00:02:22.719 --> 00:02:31.599
When it comes to state and local federal prosecutions, uh there's kind of a quiet agreement, and that goes something like this.
00:02:31.599 --> 00:02:36.240
The feds say we'll play local police and you do the prosecuting.
00:02:36.240 --> 00:02:50.639
The everyday work of deciding who gets charged with assault, homicide, or weapons offenses belongs to county prosecutors and state courts, even when the federal jackets fill the camera frame.
00:02:50.639 --> 00:02:56.719
And for decades there's been an unwritten rule of deference between the two systems.
00:02:56.719 --> 00:03:15.439
In cases that could be charged either way, such as bank robberies or drug conspiracies, even some civil rights assaults, such as a shooting by a police officer, state and federal prosecutors quietly decide who will take the case, and the other side stands down.
00:03:15.439 --> 00:03:22.479
That habit of courtesy has protected federal officers as much as it has streamlined justice.
00:03:22.479 --> 00:03:26.560
Nothing in the Constitution requires it.
00:03:26.560 --> 00:03:35.360
And the news media eats up this misleading narrative that all criminal law is largely the province of the federal government.
00:03:35.360 --> 00:03:42.319
That historically and practically is not now, nor has it ever been the case in practice.
00:03:42.319 --> 00:03:54.080
And another thing, the defining of who prosecutes criminal cases is not now, nor has it ever been defined by the president of the United States.
00:03:54.080 --> 00:03:58.879
Where the all powerful Feds image comes from, I believe, let's talk about that.
00:03:58.879 --> 00:04:06.240
First of all, I think it might come from media and pop culture, that is movies and TV that love the moment.
00:04:06.240 --> 00:04:17.839
When the feds sweep in, flash badges, do flashbang grenades, take over the crime scene, and sideline local police.
00:04:17.839 --> 00:04:28.879
It's dramatic, clear, easy to film, but it widely overstates how often that happens and how broad federal jurisdiction really is.
00:04:28.879 --> 00:04:31.920
Let's talk about jurisdiction.
00:04:31.920 --> 00:04:48.399
Federal agencies can operate nationwide and of course cross state lines, but on paper, their jurisdiction looks bigger even though state and local police handle almost all routine crime and community policing.
00:04:48.399 --> 00:04:55.439
So let's talk about the resources and the selectivity between the various levels of our government.
00:04:55.439 --> 00:05:01.680
So obviously the federal cases tend to be bigger, they're slower, and they're more resourced.
00:05:01.680 --> 00:05:11.680
That's because the cases generally are more complex conspiracies, white collar cases involving immigration, national security matters.
00:05:11.680 --> 00:05:16.399
So when the feds do show up, it feels like the big guns are around.
00:05:16.399 --> 00:05:23.040
Even though they are touching just a tiny fraction of the actual caseload.
00:05:23.040 --> 00:05:39.439
I think lastly, in terms of where we get this misimpression of what the federal government is doing in the field of criminal law and criminal prosecution and criminal justice, we need to look at the symbolisms that are portrayed on our screens every night on TV.
00:05:39.439 --> 00:06:00.560
Number one, the highly visible jackets, the press conferences, and the sh joint task force branding that feeds the sense that the federal agents are in charge, even when the charging decisions will ultimately be made quietly by a county or state prosecutor under state law.
00:06:00.560 --> 00:06:18.639
In other words, the all powerful federal cop is a powerful story, but the numbers and the actual jurisdictional lines, they still say this is mostly a state and local system, and federal agents are just one part of it.
00:06:18.639 --> 00:06:26.879
The media narratives about entertainment sometimes, and I can't say every case, are misleading.
00:06:26.879 --> 00:06:40.959
So let's look at the law which isn't entertainment, and perhaps maybe then uh I can make it more clear to you as to what uh what is what is actually going on in in real life.
00:06:40.959 --> 00:06:48.879
And hopefully that bursts the media's storyline because it's not doing a good service for the American people.
00:06:48.879 --> 00:06:58.959
In one recent case in the winter of 2026, the streets of Minneapolis held a familiar American scene.
00:06:58.959 --> 00:07:08.399
A woman was dead, a federal badge hangs in the balance, and Washington tells a whole state, Minnesota, to step aside.
00:07:08.399 --> 00:07:11.439
A federal officer fires the fatal shot.
00:07:11.439 --> 00:07:23.360
The president's people, President of the United States, insists the officer can't be touched by state law, as if federal now means above the criminal code.
00:07:23.360 --> 00:07:36.319
Well, let's look at this issue of whether there is or is an immunity in and in homicide, police involved homicide cases where um the state might prosecute.
00:07:36.319 --> 00:07:47.120
And to do that, I'm asking Sarah James, our correspondent, to come and help us explain a little more clearly uh what the state of the law is and what other people are saying about this situation.
00:07:47.600 --> 00:07:48.720
Michigan is listening.
00:07:48.720 --> 00:07:56.959
Attorney General Dana Nessel has warned that what ICE is doing in Minnesota looks like a federal agency, acting as if it is beyond accountability.
00:07:56.959 --> 00:08:04.399
I've not seen anything like what we're seeing right now in regard to how the federal government is handling their responsibilities involving immigration enforcement.
00:08:04.399 --> 00:08:06.000
It's really concerning to me.
00:08:06.000 --> 00:08:33.120
In a recent filing, she joined other state lawyers to describe how federal agents fatally shot one resident, Renee Good, seriously wounded others, and chaotically conducted unconstitutional stops and arrests, and how, because of the unlawful tactics used by ICE in Minnesota and across the country, families are afraid to visit their local food bank, kids miss school and doctor appointments, and crime victims are too scared to come forward because a federal agency has deliberately sown fear while acting as if it is above the law.
00:08:33.120 --> 00:08:36.720
Nessel has also said out loud what many officials only hint at.
00:08:36.720 --> 00:08:46.320
CBP and ICE agents do not enjoy total immunity from state prosecution, and I will do everything in my power to ensure that if they break our laws, they can be held accountable in our courts.
00:08:46.320 --> 00:08:48.879
Michigan's governor is pointing the same direction.
00:08:48.879 --> 00:08:54.000
We are witnessing unacceptable violations of Americans' safety, rights, and freedoms.
00:08:54.000 --> 00:08:55.519
No one should accept this.
00:08:55.519 --> 00:08:56.799
The violence must stop.
00:08:56.799 --> 00:09:06.480
Michiganders stand with Minnesotans as they exercise their First Amendment right to protest and make their voices heard peacefully, Governor Gretchen Whitmer said after the Minneapolis operation.
00:09:06.480 --> 00:09:10.639
A governor who says no one should accept this is not just offering sympathy.
00:09:10.639 --> 00:09:14.080
She is giving political cover to the prosecutors who might decide to act.
00:09:14.080 --> 00:09:17.120
On the ground, Michigan sheriffs are saying it plainly too.
00:09:17.120 --> 00:09:29.039
Genesee County Sheriff Chris Swanson, speaking about the Minnesota shooting, called it tragic and predictable and asked the question many viewers were already thinking was that decision to use deadly force the best decision?
00:09:29.039 --> 00:09:32.399
I don't think the American people think that, and I certainly don't think that.
00:09:32.399 --> 00:09:43.039
When a sheriff from Flint goes on national television to question whether a federal killing was necessary at all, he is also signaling that there are standards federal officers must meet, even when they cross a state line.
00:09:43.679 --> 00:09:45.679
All of this brings the law into focus.
00:09:45.679 --> 00:09:53.200
The Supremacy Clause does give federal officers a shield in state prosecutions, but it is much narrower than the slogans from Washington suggest.
00:09:53.200 --> 00:09:58.559
Courts use a simple two-part test to decide if a federal officer can avoid state charges.
00:09:58.559 --> 00:10:03.039
First, was the officer actually doing something federal law authorized him to do?
00:10:03.039 --> 00:10:09.440
Second, was his conduct necessary and proper, meaning objectively reasonable, to carry out that lawful duty?
00:10:09.440 --> 00:10:13.120
If both answers are yes, a court can dismiss state charges.
00:10:13.120 --> 00:10:18.639
If either answer is no, the shield falls away and the case can go forward under state criminal law.
00:10:19.039 --> 00:10:23.840
Alright, how do we prove a case against a federal agent in state courts?
00:10:23.840 --> 00:10:29.200
For ice shootings, everything turns on how that test is applied.
00:10:29.200 --> 00:10:53.600
If an operation itself was lawful, that was serving a valid warrant or conducting a legitimate arrest, but the officer fired in a way that clearly violated federal use of force rules or the constitutional ban on excessive force, a state can then argue the shooting was not necessary or proper to any federal duty.
00:10:53.600 --> 00:11:09.360
And if there was no valid federal authority in the first place, no warrant, no probable cause, no unlawful basis for the stop or entry, the state can then argue the officer was not executing federal law at all.
00:11:09.360 --> 00:11:19.120
That is why legal experts keep saying there's no such thing as absolute immunity for ICE agents, even in a politically charged case.
00:11:19.440 --> 00:11:21.679
All of this brings the law into focus.
00:11:21.679 --> 00:11:29.519
The Supremacy Clause does give federal officers a shield in state prosecutions, but it is much narrower than the slogans from Washington suggest.
00:11:29.519 --> 00:11:34.399
Courts use a simple two-part test to decide if a federal officer can avoid state charges.
00:11:34.399 --> 00:11:38.879
First, was the officer actually doing something federal law authorized him to do?
00:11:38.879 --> 00:11:45.360
Second, was his conduct necessary and proper, meaning objectively reasonable, to carry out that lawful duty?
00:11:45.360 --> 00:11:49.039
If both answers are yes, a court can dismiss state charges.
00:11:49.039 --> 00:11:54.480
If either answer is no, the shield falls away and the case can go forward under state criminal law.
00:11:55.039 --> 00:11:56.080
Absolute immunity.
00:11:56.080 --> 00:11:58.080
The George Floyd case proved that wrong.
00:11:58.080 --> 00:12:02.080
Minnesota, of course, has its own recent memory of holding an officer to account.
00:12:02.080 --> 00:12:09.200
After George Floyd was murdered on a Minneapolis street, it was state law, state charges, and a state jury that sent Derek Chauvin to prison.
00:12:09.200 --> 00:12:16.000
That verdict rested on Minnesota's definition of murder, not a federal civil rights statute, and no president could erase it.
00:12:16.000 --> 00:12:23.039
Today, when Minnesotans hear the phrase absolute immunity for an ice shooter on those same streets, they measure it against that experience.
00:12:23.039 --> 00:12:28.799
They remember that a local system, under enormous pressure, did manage to hold one officer accountable.
00:12:29.200 --> 00:12:30.480
Thank you, Ellis.
00:12:30.480 --> 00:12:32.879
Where does all this lead us now?
00:12:32.879 --> 00:12:40.000
In conclusion, I'd like to say it's not an easy answer in every situation.
00:12:40.000 --> 00:12:51.759
Having reviewed many, many dozens of officer-involved shootings, uh these are not easy calls, and they're not calls that everybody agrees with.
00:12:51.759 --> 00:12:55.679
But before you can make any call, you have to know what the law is.
00:12:55.679 --> 00:13:03.120
So here's my final challenge to the police community, to the legal community in America.
00:13:03.120 --> 00:13:17.279
We have a constitution at this point that's waiting for a few good men and women to step forward and do their duty for the Constitution and for history.
00:13:17.279 --> 00:13:25.039
Michigan officials are now asking whether they need to do the same if the pattern spreads.
00:13:25.039 --> 00:13:42.000
Nessel's insistence that federal immigration enforcement should not be should not make people afraid of our courts, and her promise that ICE and Border Patrol agents do not enjoy total immunity from state prosecutions are not academic points.
00:13:42.000 --> 00:13:45.600
They are a statement that the tools already exist.
00:13:45.600 --> 00:13:56.799
Governor Whitmer's warning about unacceptable violations of rights offers political backing if a Michigan prosecutor ever decides to test those tools in court.
00:13:56.799 --> 00:14:06.960
Genesee County Sheriff Swanson's public doubts about the necessity of deadly force sound like the opening lines of a cross examination.
00:14:06.960 --> 00:14:10.559
None of this guarantees an easy prosecution.
00:14:10.559 --> 00:14:24.720
The Supremacy Clause and the removal process give federal officers real advantages, and any state case against an ice chute would be a hard fought and difficult case.
00:14:24.720 --> 00:14:27.519
But the law does promise one thing.
00:14:27.519 --> 00:14:38.960
When a federal officer kills on state soil, someone other than the pres someone other than the president gets to ask the necessary question.
00:14:38.960 --> 00:14:41.279
Were you really doing your job?
00:14:41.279 --> 00:14:43.840
And did you really need to do that?
00:14:43.840 --> 00:14:44.799
Thank you.
00:14:45.039 --> 00:14:49.200
This has been Arthur Bush for Radio Free Flint.
00:14:49.200 --> 00:15:08.240
We hope you enjoy uh our podcast on the Mitten channel, and if you do, we ask you to like our channel, to follow it, to rate us especially, and uh to give us a line, uh send a comment or an email to radiofreeflint.media.
00:15:08.240 --> 00:15:10.240
We'd enjoy hearing from you.
00:15:10.240 --> 00:15:12.159
So for now, that's it.
00:15:12.159 --> 00:15:15.679
Have a good day, and thank you very much for listening again.
00:15:15.679 --> 00:15:17.039
Goodbye.
