When ICE descends on Massachusetts in force, who can protect us?
No one, according to the Trump administration. It claims that federal immigration agents enjoy absolute immunity and that the state is helpless, impotent, to protect itself and its people from crimes they commit.
But according to local constitutional warrior John Bonifaz, president and co-founder of the Amherst-based national organization, Free Speech for People, speaking on local and national media has characterized that assertion as “a complete fabrication.”
Donald Trump and JD Vance assert that the Constitution’s Supremacy Clause (“The laws of the United States … shall be the supreme law of the land’) means that states have no authority over ICE and other federal law enforcement, no ifs, ands or buts.
They’re lying. The Supremacy Clause only provides immunity when agents’ actions are “necessary and proper” to carry out their duties. ICE agents have no right to commit homicides or to kidnap, commit assault and battery, destroy property or break and enter and trespass in a residence. No federal law authorizes them to commit state crimes. None.
In Minneapolis we’ve witnessed the horrifying results of this asserted immunity —the shootings of Renee Good (fatally in her head), Alex Pretti (fatally in his back) and Julian C. Sosa-Celis (in his leg). In response federal officials have lied and lied and lied some more; claimed the victims are “domestic terrorists” and criminals; micro-managed cover-ups. Thank God for cell phones and videos.
Across the country federal agents have been acting like an occupying force. As they decamp from Minneapolis claiming success, the fearful question is, which community is next?
Massachusetts Attorney General Andrea Campbell, to her credit, has challenged the “militarized and illegal deployments” of federal officers. Her recent amicus brief supporting Minnesota in a civil case asserted that “(t)he Trump administration’s reckless enforcement of cruel immigration policies is irresponsible, jeopardizes the safety of our communities, and undermines state and local governments’ ability to deliver basic services and protections to their residents.”
And going about as far as she can given ongoing investigations, she’s stated that Renee Good’s death “could be murder.”
So far so good. But we will need more. We will need Attorney General Campbell to publicly, clearly and emphatically pledge that she will investigate and indict federal agents who violate our criminal laws. Keep it simple: ICE agents, if you break the law here, you’re going to state prison.
ICE agents, of course, have been operating in Massachusetts, abducting and detaining people and committing some state crimes. What we have not yet endured is a massive federal deployment like those in Minneapolis, Los Angeles, Chicago, Portland, and Washington D.C.
Timing matters. The AG shouldn’t precipitously paint a target on our back for Trump. But neither can she unduly delay. Instilling fear of state prosecutions could well tamp down the size of DHS and ICE’s occupying force and also reduce the number and severity of the crimes that federal law enforcement officers will commit.
Both the attorney general and district attorneys prosecute crimes. They can work together and employ state and municipal police and investigative resources to ferret out facts and garner evidence. And they should.
Here the district attorney for Hampshire and Franklin Counties, David Sullivan, has pledged to investigate and prosecute federal agents who break the law. An example: you’re exercising your constitutional and statutory right to film ICE agents. An agent, unhappy about being captured on video, strikes and detains you. That’s assault and battery.
“No person is above the law,” Sullivan insists. “If they violate a state criminal law … then we have the right to charge those officials and certainly (take the case) through the state system.” The other Massachusetts district attorneys should stand shoulder to shoulder with Sullivan on this.
A caveat. These prosecutions will not be easy. They will face problems of proof, starting with identification of the masked perpetrators. The feds will claim that the person they assaulted was interfering. They’ll stonewall state investigators. And the defendant federal officers will do something other state criminal defendants cannot — remove the case to federal court, where they’ll assert immunity. These defendants will have unlimited resources, including video and other experts galore. And so on.
Problematic? Sure, but not insurmountable.
The Tenth Amendment, the final provision in the Bill of Rights, provides that all the powers not specifically given to the federal government “are reserved to the states respectively or to the people.” This means that state law enforcement has the right (and many say the obligation) to prosecute the crimes discussed here. In sum, the Constitution is on our side.
When ICE arrives, we the people must resist and protest as the good people of Minneapolis have. Courage will be required given the casualty count.
For resistance to work we will need to rely on neighbors, friends and allies and state and local leaders. Our DAs and attorney general must use all available tools to prevent and punish federal law enforcement’s lawlessness. At its core this is a straightforward proposition: Massachusetts can and must hold federal agents to account.
Bill Newman is a Northampton-based lawyer and co-host of Talk the Talk on WHMP.