{"id":128353,"date":"2026-01-08T12:00:32","date_gmt":"2026-01-08T17:00:32","guid":{"rendered":"https:\/\/www.justsecurity.org\/?p=128353"},"modified":"2026-01-08T12:01:57","modified_gmt":"2026-01-08T17:01:57","slug":"doj-silence-federal-immigration-agents-violence","status":"publish","type":"post","link":"https:\/\/www.justsecurity.org\/128353\/doj-silence-federal-immigration-agents-violence\/","title":{"rendered":"DOJ\u2019s Dangerous Silence in the Face of Federal Immigration Agents\u2019 Violent Tactics"},"content":{"rendered":"

On Wednesday morning<\/a> in Minneapolis, an Immigration and Customs Enforcement (ICE) agent shot and killed a woman in her car during a federal immigration enforcement operation. Department of Homeland Security (DHS) officials characterized the shooting as a response to \u201can act of domestic terrorism<\/a>,\u201d stating the woman \u201cweaponized her vehicle\u201d and attempted to \u201crun over\u201d officers. Minneapolis Mayor Jacob Frey has disputed that account<\/a>, describing the incident as \u201can agent recklessly using power that resulted in somebody dying.\u201d Governor Tim Walz described it as \u201ctotally avoidable.\u201d The FBI and Minnesota Bureau of Criminal Apprehension initially announced they were jointly investigating<\/a> the matter. Within hours, the U.S. Attorney’s Office reversed course<\/a>, stripping the state agency of access to case materials and asserting unilateral control over the investigation.<\/p>\n

The fatal Minneapolis shooting is among the most serious in a series of incidents<\/a> over recent months involving federal immigration agents\u2019 use of force. Videos have documented agents firing pepper balls at clergy, shooting rubber bullets at journalists, and deploying tear gas against protesters. Many of these incidents raise questions about whether agents used excessive force in violation of the Fourth Amendment and federal criminal law. Yet, the Minnesota incident is only the first where the FBI has indicated it is investigating, and so far, DOJ has announced no criminal charges related to any such incident. While the current investigation is an important step, it is far from sufficient.<\/p>\n

Private plaintiffs are challenging the legality of many DHS tactics in court. The Department of Justice (DOJ), for its part, has remained conspicuously silent through months of these tactics. This silence is a dangerous abdication of DOJ\u2019s authority and responsibility. Under 18 U.S.C. \u00a7 242, which makes it a crime for any government official to willfully deprive someone of their constitutional rights, DOJ can and should investigate and, where appropriate, charge federal agents who use excessive force.<\/p>\n

A Pattern of Force Raising Constitutional Questions<\/strong><\/h2>\n

Reports of aggressive, violent, and potentially unlawful tactics by some federal agents have followed each surge of officers arriving in a new city to conduct the administration\u2019s immigration enforcement operations. These have included a military-style, nighttime raid<\/a> on sleeping families at an apartment complex, the firing of tear gas canisters, rubber bullets, and pepper balls at non-violent protestors<\/a>, and widespread racial profiling followed by stops and detentions<\/a> without reasonable suspicion or warrants. State and local officials have decried the unreasonable uses of force in court<\/a> and in public<\/a> statements<\/a>, and at least two Senators<\/a> have publicly called on DOJ to investigate. Nevertheless, the President and Department of Homeland Security leadership have repeatedly defended<\/a> their tactics.<\/p>\n

Traditionally, the DOJ\u2014in any administration\u2014would seek accountability for unlawful, excessively violent tactics by law enforcement officers, by charging them with violating people\u2019s constitutional rights. However, the DOJ has not announced any charges relating to federal immigration enforcement actions, nor (before Wednesday) had it indicated it had even taken notice.<\/p>\n

This is not surprising. By now, it is clear to those paying attention that the DOJ is acting as the administration\u2019s enforcer<\/a>, prioritizing politicized prosecutions<\/a> against Trump\u2019s perceived enemies<\/a>, rather than exercising its independent judgment. And while public attention, understandably, has focused on those high-profile questionable prosecutions<\/a>, DOJ\u2019s omissions<\/em>\u2014the cases it is choosing not to pursue\u2014also deserve scrutiny. The agency\u2019s silence about violent tactics by federal agents suggests an apparent abandonment of its criminal civil rights enforcement authority, a silence that is destructive to the rule of law itself.<\/p>\n

DOJ\u2019s failure to act signals a troubling abdication of its authority to enforce the constitutional limits of federal agents\u2019 coercive power. The federal statute that is most clearly implicated by aggressive ICE and CBP tactics, 18 U.S.C. \u00a7 242<\/a>, is a Reconstruction-era law that makes it a criminal offense for federal, state, or local government officials to willfully deprive a person of their constitutional rights. Congress passed the statute as part of a series of laws<\/a> intended to protect the rights of Black Americans following the Civil War. The statute was among those aimed at enforcing the protections of the newly enacted Thirteenth, Fourteenth, and Fifteenth Amendments.<\/p>\n

Investigations and prosecutions under Section 242, while not numerous, are often significant. Career prosecutors under both Republican and Democratic administrations have, for decades, relied on the statute to investigate the conduct of law enforcement officers when needed. DOJ used Section 242 to prosecute<\/a> the men, including law enforcement officials, responsible for the 1964 murder of three young civil rights activists<\/a> in Mississippi. In 1993, under the leadership of Attorney General Bill Barr<\/a>, DOJ obtained indictments<\/a> against four Los Angeles Police Department officers involved in the 1991 beating of Rodney King, two of whom were later convicted at trial. Nearly three decades later, the first Trump Administration\u2019s DOJ, again under Attorney General Bill Barr\u2019s leadership, opened an investigation into the death of George Floyd<\/a>. The DOJ later charged four Minneapolis Police Department officers with violating Section 242, ultimately convicting<\/a> them for violating Mr. Floyd\u2019s constitutional rights.<\/p>\n

DOJ\u2019s failure to address apparent uses of excessive force by federal immigration agents, coupled with DHS doubling down<\/a> on the appropriateness of its violent and constitutionally questionable tactics<\/a>, makes the situation more dangerous. In prior administrations, agents credibly accused of violating the Constitution by using unreasonable force would commonly be placed on leave, or on desk duty, while the agency (in this case, ICE or CBP) conducted an internal administrative investigation<\/a> or referred the incident to DOJ. DOJ could then conduct a criminal investigation when warranted and, if no charges resulted, the agency could determine whether it needed to take administrative action or return the officer to enforcement duties. Currently, however, DHS has permitted agents to continue to serve, with few known exceptions<\/a>\u2014and even lauded<\/a> their conduct. Meanwhile DOJ\u2019s silence emboldens<\/a> further aggressive uses of force.<\/p>\n

Select Incidents Meriting Investigation<\/strong><\/h2>\n

Over the past seven months, many incidents involving federal immigration agents\u2019 force have been documented on video. While each incident requires thorough investigation to determine whether agents violated federal law, the publicly available evidence in many cases appears to implicate Section 242 and merit a full investigation. Indeed, at least one federal court has already concluded<\/a> that individual and organizational plaintiffs made a \u201cstrong showing\u201d that the government\u2019s tactics constituted unreasonable force in violation of the Fourth Amendment.<\/p>\n

September 19, 2025 \u2013 Broadview, Illinois<\/em><\/h3>\n

To take one widely-reported<\/a> example, on September 19, 2025, at least one federal agent stationed on the roof of an ICE processing and detention facility in Broadview, Illinois, fired pepper balls at Reverend David Black as he prayed outside the building with a group of protestors holding signs, shouting, and dancing. A video<\/a> shows Reverend Black, dressed in clerical garb and standing with his arms extended, palms open and empty, in a parking space outside the building, when an agent drew and repeatedly fired a pepper ball launcher at Black, striking him in the head, arms, and torso, and causing him to fall to his knees. Black later stated in a court declaration<\/a> that the officers had issued no warnings or orders to disperse before firing, and none can be heard in the video. Neither Black nor the other protestors visible in the video appeared to pose any threat to the officers.<\/p>\n

While a full investigation would be required, the publicly available evidence indicates that one or more officers may have committed a felony civil rights violation in firing pepper balls at Reverend Black. To establish a violation of Section 242, a defendant must have been (1) acting under color of law when he (2) willfully (3) deprived a person of a constitutional or federal right. Officers act \u201cunder color of law<\/a>\u201d when they act in their official capacity. The agent who fired at Reverend Black was acting under color of law, and in firing pepper balls at Reverend Black and other protesters, the officer may have violated both Black\u2019s First and Fourth Amendment rights.<\/p>\n

Focusing on Black\u2019s Fourth Amendment right to be free from the use of unreasonable force<\/a> by a law enforcement officer, it is not apparent there was a need for any<\/em> force\u2014the protestors did not pose a discernable threat to the safety of the officers or anyone else, and the video indicates no urgent need for the protestors to move. Firing pepper balls with no warning at a pastor\u2019s head while he was praying under these circumstances is objectively unreasonable. And the very obvious<\/em> unreasonableness of those actions indicates that the officer knew firing on Black would be unlawful. Knowing this\u2014and choosing to fire anyway<\/a>\u2014is the definition of willfulness<\/a>. Finally, Reverend Black\u2019s reaction<\/a>\u2014clasping his hand to his eyes and collapsing on his knees\u2014shows that he suffered bodily injury<\/a>. Proving this element makes the crime a felony. In any previous administration, an incident like this, caught on video, would have prompted an immediate DOJ investigation.<\/p>\n

October 23, 2025 \u2013 Oakland, California <\/em><\/h3>\n

In Oakland, on October 23, 2025, the Reverend Jorge Bautista<\/a> attended an early morning vigil<\/a> to protest an expected immigration enforcement surge in the Bay Area. As trucks carrying CBP agents drove past protestors toward a bridge connecting Oakland with the agents\u2019 destination, a Coast Guard base, agents exited the trucks and approached the protestors, including Reverend Bautista. One agent trained a pepper ball launcher on Bautista from about five feet away. As Bautista said, \u201cwe\u2019re here in peace,\u201d the agent fired a pepper ball into Bautista\u2019s face, leaving him coated in powder and bleeding from his chin. While video<\/a> and photographs<\/a> that capture the incident do not show all the circumstances that would be relevant to determining whether this use of force was reasonable, firing at such close range at the head of a pastor who, by his words and actions showed that he did not pose a threat, appears unreasonable; these facts would support an investigation.<\/p>\n

June 7, 2025 \u2013 Paramount, California <\/em><\/h3>\n

On June 7, 2025, journalist Ryanne Mena<\/a> was interviewing protestors near a Home Depot in Paramount, California, wearing press credentials, when federal agents exiting a nearby warehouse began firing rubber bullets at her and the protestors. They did so without first issuing a warning. Mena said relatively few protestors were present, and she did not see anyone threatening or antagonizing the agents. As she and a second journalist ran for cover, a rubber bullet struck her in the head<\/a>; the other journalist was hit in the forehead with a tear gas canister. This incident, too, would be an appropriate subject for a Section 242 investigation.<\/p>\n

Proving Section 242 violations beyond a reasonable doubt can be challenging in part because the law permits officers to use force\u2014even lethal force\u2014in certain circumstances. When officers willfully exceed the bounds of the law, however, the DOJ is authorized to prosecute. The DOJ\u2019s prosecution of federal officers who have violated Section 242 involves, at its core, the enforcement of not just a criminal statute but the rule of law itself\u2014as it ensures the officers entrusted to execute the law themselves act within its bounds.<\/p>\n

Bringing civil rights prosecutions against law enforcement officers is never easy. Juries tend to be wary of harshly judging those who choose a job protecting the public at risk to their own safety. But DOJ has traditionally recognized the importance of holding the agents and officers who wear badges and carry guns responsible when they willfully violate the rights of those whom they serve. This practice underscores the idea that no one is above the law.<\/p>\n

The video evidence and other evidence already in the public domain about these and other incidents provides ample cause to open civil rights investigations. Yet we have heard resounding silence from this DOJ.<\/p>\n

Other Avenues for Relief are Challenging<\/strong><\/h2>\n

Action from DOJ in response to excessive force by federal immigrant agents is vital also because alternative paths for pursuing accountability are challenging. Local prosecutors face significant legal hurdles in bringing charges against federal officials for violating state law: where federal agents\u2019 actions are authorized by federal law and \u201cnecessary and proper\u201d for fulfilling their federal duties, they may be immune from prosecution under the Supremacy Clause<\/a>. Private litigants also face significant doctrinal challenges when suing federal officers, as the Supreme Court has both limited the availability of injunctive relief<\/a> for ongoing violations and narrowed<\/a> the circumstances under which suits for monetary damages may be brought against federal officials. Where litigants can sue, the robust protections provided by qualified immunity<\/a> often mean the suit is dismissed before discovery\u2014even if a court agrees that the federal officials violated the Constitution.<\/p>\n

States, therefore, are pursuing creative methods to document perceived abuses, as Governor Pritzker has done in creating the Illinois Accountability Commission<\/a>. This Commission aims to gather evidence of potentially unlawful conduct by federal agents, to support referrals to investigative agencies and recommendations for changes to existing laws to better protect state residents. Other states<\/a> and cities<\/a> have created online portals<\/a> that residents can use to report misconduct by federal agents. Still others have announced they are investigating<\/a> possible violations of state law by federal agents or that they stand ready<\/a> to do so. Meanwhile, many state<\/a> and local law enforcement leaders<\/a> remain focused on improving both public safety and community trust<\/a>, which go hand-in-hand. Their approaches include better engagement with communities<\/a>, an emphasis on deescalation<\/a>, and new guidelines for policing protest<\/a> events. Where federal officers are not immune from state prosecution (because, for instance, their actions violate federal law) states can select the appropriate charge from an array of state statutes, including ones that, unlike Section 242, permit prosecution for criminal negligence and other lesser levels of intent than Section 242 requires.<\/p>\n

***<\/strong><\/p>\n

DOJ has the authority, resources, and responsibility to hold federal agents accountable for willful constitutional violations. It has the tools and power to deter further unlawful acts. Unfortunately, DOJ\u2019s current abdication of responsibility puts communities at needless risk and undermines the rule of law itself.<\/p>\n","protected":false},"excerpt":{"rendered":"

The DOJ has the authority, resources, and responsibility to hold federal agents accountable for willful constitutional 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