ICE and The Law

The "State v. Federal" Jurisdictional Battle

​The Supremacy Clause Immunity (derived from In re Neagle).

When a federal agent (like ICE or FBI) is charged with a state crime (like homicide), the "Removal" process is almost certain.

​The Threshold: To get the case dismissed before trial, the agent must prove they were doing what was "necessary and proper" to perform their duty.

​The Conflict: If the agent violated internal protocols (like firing into a moving car) or acted "unreasonably," the federal court can send the case back for prosecution, or apply state law within the federal courtroom.

​2. The "Officer-Created Jeopardy" Doctrine

​The core of the argument rests on the idea that an officer cannot create the danger and then use that danger to justify lethal force.

Most Americans have little to no idea as to their U.S. Constitutional rights, much less THE federal criminal penalty for any person acting under color of law violating a person's U.S. Constitutional rights.

This webpage addresses these issues, federal case law and the political aspect of a person asserting their U.S. Constitutional rights.

One of the most important and relevant federal criminal laws on the books is U.S.C. TITLE 18, Section 242 and its sister statute, Section 241.

Additionally, one of the most important and relevant legal truisms related to U.S.C. TITLE 18, Sec. 242 is found in negligence law. More on that later.

The text of U.S.C. TITLE 18, SEC. 242 Deprivation of Rights Under Color of Law is as follows:

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.

What does this mean?

This federal criminal law can apply to any person acting under color of law.

Who is a "person acting under color of law?"

Any person who in the scope of their employment is required to follow a specific or set of laws, statutes, ordinances, regulations, or customs in the discharge of their duties.

Examples of persons acting under color of law are local, city, state or federal employees; including elected and unelected officials; including U.S. Presidents, Senators, Congresspersons, agency heads or employees, police officers, council members, nursing home administrators, physicians, nurses, medical professionals, and other professionals who in the scope of their employment are required to follow a specific or set of laws, statutes, ordinances, regulations, or customs in the discharge of their duties.

Pursuant to U.S.C. TITLE 18, Sec. 242 the penalty for a person acting under color of law who violates a person's U.S. Constitutional rights is a minimum of one year in a federal penitentiary and up to life in prison depending upon the severity of the offense.

The reason you may have never heard of this essential federal criminal law is because this law is THE MECHANISM for holding professionals to account for violating a person's U.S. Const. rights.

Police unions and in particular the Republican Party consider U.S.C. TITLE 18, Sec. 242 and 241 as THE ENEMY AND THREAT to police officers, elected and unelected local, county, state and federal officials.

The specific reason the George Floyd Act was never passed was due to Republican opposition to the use of U.S.C. TITLE 18, Sec. 242 in the George Floyd Act.

Republicans insisted the ONLY WAY Republicans would vote for the passage of the George Floyd Act would be upon neutering U.S.C. TITLE 18, Sec. 242 by changing the text of the statute.

Democrats refused to change the text of U.S.C. TITLE 18, Sec. 242 and thus the George Floyd Act was never passed.

In 1982, in Harlow v. Fitzgerald the U.S. Supreme Court limited the scope of the statute by ruling that the statute could only be applied IF a person acting under color of law violated what the Court referred to as "clearly established" rights.

The Court ruled that officials are immune unless their conduct violates "clearly established statutory or constitutional rights of which a reasonable person would have known."

While Pierson v. Ray (1967) laid the foundation by allowing a "good faith" defense for officers, the modern standard for qualified immunity, protecting officials unless they violate "clearly established" rights, was established in Harlow v. Fitzgerald (1982), protecting presidential aides, and later applied to police in cases like Anderson v. Creighton (1987).

Key Cases in its Development:

• Pierson v. Ray (1967): Protected police officers acting in good faith under a law later found unconstitutional, establishing a baseline for protecting officials from liability when acting reasonably in unclear legal situations.

• Harlow v. Fitzgerald (1982): Refined the doctrine, focusing on objective legal standards rather than subjective intent, stating officials are immune unless their conduct violates "clearly established statutory or constitutional rights of which a reasonable person would have known."

• Anderson v. Creighton (1987): Further solidified the "clearly established" standard, emphasizing that the right must be specific enough that a reasonable official would understand their actions violate it.

In essence, Harlow v. Fitzgerald established the modern test, making it harder to sue government officials by requiring plaintiffs to show a violation of a specific, already-defined right.

Qualified immunity is a type of legal immunity that protects a government official from lawsuits alleging that the official violated a plaintiff's rights, only allowing suits where officials violated a “clearly established” statutory or constitutional right.

“Qualified immunity balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” See: Pearson v. Callahan.

When determining whether a right was “clearly established,” courts consider whether a hypothetical reasonable official would have known that the defendant’s conduct violated the plaintiff’s rights.

Courts conducting this analysis apply the law that was in force at the time of the alleged violation, not the law in effect when the court considers the case.

Usually, in qualified immunity cases, a plaintiff will first bring a suit under the Civil Rights Act of 1871 (Section 1983) against a public official.

The public official will then raise a qualified immunity defense that protects the official from all but clear incompetence or knowing violations of the law if the official acted in a reasonable but mistaken way.

Qualified immunity is not immunity from having to pay money damages, but rather immunity from having to go through the costs of a trial at all.

Accordingly, courts must resolve qualified immunity issues as early in a case as possible, preferably before discovery.

Qualified immunity only applies to suits against government officials as individuals, not suits against the government for damages caused by the officials’ actions.

Although qualified immunity frequently appears in cases involving police officers, it also applies to most other executive branch officials.

While judges, prosecutors, legislators, and some other government officials do not receive qualified immunity, most are protected by other immunity doctrines.

What do the Courts consider a "clearly established" right?

A "clearly established" right, in the context of qualified immunity, means the law was so specific and well-defined at the time of an official's action that any reasonable official would have known their conduct violated it, requiring a high bar of clarity from prior court decisions with similar facts, not just general legal principles, to overcome immunity.

It provides a "fair warning" that certain actions are unconstitutional, protecting officials from liability unless they are "plainly incompetent or knowingly violate the law."

Key aspects of "clearly established" law:

• High Specificity: The legal principle must be clear in the particular circumstances the official faced, not just a broad constitutional right (like the Fourth Amendment).

• Precedent-Based: Usually requires a prior court case (from the Supreme Court, circuit, or state's highest court) with "materially similar" facts that found similar conduct unlawful.

• "Fair Warning": The core idea is that the official had sufficient notice their actions were illegal.

• Objective Standard: It's judged by what a "reasonable official" would know, not the specific official's personal knowledge.

• High Hurdle for Plaintiffs: This standard makes it difficult for plaintiffs to sue government officials, as courts often find that even if a right was violated, it wasn't "clearly established" in a specific enough way.

Examples:

• It's not enough to know generally that police shouldn't use excessive force (a general right).

• To overcome qualified immunity, a plaintiff must show there was a prior case clearly establishing that the specific type of force used in those specific circumstances (e.g., using a taser on a non-threatening, handcuffed person) was unconstitutional.

The court-imposed barriers set forth in U.S. Supreme Court cases