She raised the phone above her head as if to train its camera on the agent's eyes, which peered out from his black ski mask. He slowed his step momentarily, turned, and swung his hand in a wide arc, snatching the phone out of the woman's hand. "Oh, dude!" she exclaimed at the agent, who had already put several paces between them. "You can't take my phone!" She jogged after him and reached up to touch his shoulder. "You cannot ..."
But the agent had already wheeled around and grabbed her. The small crowd of protesters erupted in shouts and screams as he dragged the woman across the street and shoved her over a curb, sending her tumbling backward down a grassy embankment. "Call 911!" someone shouted.
But what 911 can do remains an open and complicated question. Colorado law enforcement agencies are investigating whether the ICE agent's use of force on Oct. 28 violated any state laws, making it the latest state to eye criminal charges against aggressive federal agents.
States' practice of prosecuting federal agents has deep historical roots. The issue often arises during times of political strife, such as during slavery, prohibition and the civil rights era, experts said. But the cases often end up being removed to federal courts, where state prosecutors have had mixed success in overcoming legal and political hurdles.
Bryna Godar, staff attorney with the State Democracy Research Initiative at the University of Wisconsin Law School, studied the history and feasibility of prosecuting federal officials for state-law violations. One of the major points of tension is in the U.S. Constitution's supremacy clause, which holds that federal law supersedes state law and can shield federal workers doing their jobs when the two conflict.
States have, throughout history, used criminal prosecution to frustrate federal law, Godar said. "That said, these prosecutions, over time, have also played a really important role in upholding federalism and ensuring that the federal government does not abuse its power."
For instance, in the mid-1800s, Northern states defying the Fugitive Slave Act sometimes lodged kidnapping and assault charges against U.S. marshals who captured people who escaped slavery, she said.
During the prohibition era, states often prosecuted federal officers who enforced tax-collection and prohibition laws, she wrote in a paper published by the State Democracy Research Initiative. Courts sometimes sided with the states in cases where the use of force appeared to be unreasonable, or where the incident did not appear to stem from the federal officials' legitimate performance of their duties.
In the 1960s, segregationists rioted at the University of Mississippi as U.S. marshals tried to enforce the court-ordered enrollment of a Black student. State prosecutors charged the chief marshal with disorderly conduct for firing tear gas into the crowd. A federal judge ultimately tossed the charges, saying the marshal's actions were reasonable.
Prosecutors have met mixed success in these cases. Federal officials can seek to have the cases removed to federal district courts, where judges will consider whether the cases are removable and whether the official is entitled to supremacy clause immunity, which can often take significant time and litigation.
This year, aggressive ICE tactics employed against U.S. citizens and immigrants alike have pitted several states against the federal government once more.
California officials, including U.S. Rep. Nancy Pelosi, San Francisco District Attorney Brooke Jenkins and Gov. Gavin Newsom, have recently endorsed the idea of local police arresting ICE agents who violate state law. This prompted Deputy U.S. Attorney General Todd Blanche to send a letter Oct. 23 threatening to "arrest and prosecute any state or local official" who conspires to obstruct federal immigration and law enforcement agents.
But the case of the Durango protester in Colorado is perhaps among the first being actively investigated by law enforcement agencies.
The video of the agent's use of force on the protester quickly circulated on social media, with one perspective posted on YouTube by The Durango Herald newspaper. The Durango Police Department, serving a city of about 20,000 people, said in a statement that it had requested help from the Colorado Bureau of Investigation. The statewide criminal investigation agency announced that it was investigating the incident and solicited tips, but said it would not release any additional information.
It was unclear whether the involved agent had been identified. The Department of Homeland Security did not immediately respond to questions about the incident. The Federal Bureau of Investigation's Denver office sent an automated email response saying media inquiries will be considered after the government shutdown ends.
If Colorado officials decide to press charges, the outcome is uncertain.
The first bar such charges would have to clear is the supremacy clause, which generally grants federal employees immunity from state-law prosecution if they are doing what is necessary to perform their duties, in accordance with federal law and in a reasonable manner. But this leaves open questions about what the employee's duties are, and how to gauge the necessity and reasonableness of their actions.
Courts have even diverged on the perspective from which an action must be reasonable for the purposes of supremacy clause immunity, the University of Wisconsin's Godar said. Some have said federal employees' actions must be objectively reasonable, based on what a reasonable officer or employee on the scene would believe. Others have found that the actions must be subjectively reasonable, based on what the federal employee believed at the time.
The U.S. Supreme Court has yet to weigh in on that point, she said.
Jonathon Booth, an associate professor of law at the University of Colorado Law School, said supremacy clause immunity remains an undeveloped area of law.
Federal officials need to be able to do their everyday jobs without getting arrested, regardless of political popularity, said Booth, who focuses on criminal law and the history of policing. But on the other hand, the Supreme Court has held that federal employees' jobs alone do not automatically make them immune from state-law prosecution.
If an ICE agent robbed a liquor store, it would clearly be outside the scope of his duties, Booth said. But it gets fuzzier when it comes to things like excessive force, where the difference between reasonable and unreasonable can be a close call. What about the agent who feels fear and shoves a protester or launches tear gas into a peaceful crowd?
It could be self-defense, or it could serve to protect people or property. Or it could be disproportionate, or not what they are paid to do.
"You might be able to argue that is fully outside their scope of employment, and has nothing to do with their actual job duties of enforcing immigration law," Booth said.
If prosecutors can overcome supremacy clause immunity, they would still have to prove an excessive-force case. The Supreme Court's 1989 ruling in Graham v. Connor
holds that excessive-force claims must be analyzed under an "objective reasonableness" standard.Booth said the federal law enforcement apparatus has been growing much more powerful over the past few decades, and that he would not be surprised to see more cases involving federal agents' conduct.
"We've got agents who've been called 'secret police,' and who are dressed like they're invading Fallujah," he said. "It makes sense that states would want to exercise their sovereign authority to enforce their criminal laws, even if the person breaking those laws happens to work for the federal government."
--Editing by Kelly Duncan and Emily Kokoll.