A Supreme Court ruling shows why Jonathan Ross can be charged with murder in Minnesota

For anyone who has watched the many videos showing ICE agent Jonathan Ross shooting Minnesota mom Renee Nicole Good, the conclusion is obvious: This is murder.

Under ordinary circumstances, the Department of Justice would be investigating this incident, and Ross would be suspended awaiting the outcome of that investigation. But we are nowhere near ordinary circumstances. Instead, Department of Homeland Security Secretary Kristi Noem has labeled Good a "domestic terrorist" and blessed Ross's shooting without bothering to conduct any review, talk to any witnesses, or apparently watch any of the videos clearly showing that Ross was never under any conceivable threat.

Both Donald Trump and J.D. Vance have issued statements that are completely at odds with what happened on January 7. Noem has also stated that Ross "followed his training protocol" and was justified in his actions.

As far as the White House is concerned, Good is a dead terrorist and Ross is a hero.

Good's tragedy—a young mother killed for no reason after dropping off her 6-year-old at school—is not a solitary event. Since Trump reentered the White House and began his immigrant pogrom, ICE agents have fired their weapons at civilians at least 16 times. As The Trace notes:

Renee Good was one of four people who have been killed. Another seven people have been injured.

At least 15 other civilians have been held at gunpoint. In addition, ICE has routinely brutalized both protestors and bystanders. That includes incidents such as shooting a priest in the head with pepper balls and teargassing infants.

Every day, ICE agents seem determined to show that they sincerely believe American citizens have no recourse but to submit to their abuse.

What's most disheartening about all this is that so far ... ICE is right. While several agents have been arrested for off-duty crimes, abusive behavior and deadly force have earned only praise from Trump, Noem, Vance, and other Republicans. Attorney General Pam Bondi has taken up none of these cases for review, and Trump has made it clear that he expects Americans to surrender their First Amendment rights … or else.

But if no one in the Justice Department will stand up for the Constitution—and they won't—what's left? Can state and local officials bring a rogue agency to heel?

Minnesota Attorney General Keith Ellison and Hennepin County Attorney Mary Moriarty have announced that they are investigating Good's death. This is being made much more difficult because the FBI has taken apparently unprecedented action to block access to any evidence collected by federal officers.

Moriarty is soliciting additional videos and statements from witnesses. Ross or other ICE agents do not appear to have been made available to speak to state or county officials.

How likely is it that charges will be leveled against Ross, or any of the other ICE agents involved in incidents of deadly force, assault, and abuse? What are the odds of any of them being convicted?

This is seriously difficult to determine.

First, there's the question of whether or not an ICE agent involved in an immigration raid qualifies as a "peace officer." It may seem like an obvious question, but relevant case law is pretty thin on the ground. ICE agents are federal officers, but the Venn diagram of their authority doesn't cover the general enforcement powers of FBI agents or federal marshals. Their training is on immigration enforcement, and doesn't include general public safety or community policing. They are not agents under the Department of Justice, but facilitators under DHS.

Best guess? No. ICE agents are not "peace officers," no matter how many times they stencil "POLICE" on their vests. However, in any case against Ross or another ICE agent, the "peace officer" status is likely to be front and center. That question will get resolved, but probably only after working its way to the Supreme Court.

Even assuming that Ross is a peace officer under Minnesota state law, that doesn't cut off the chance of prosecution.

In general, to bring charges against any law enforcement officer for using deadly force, the State has to show that the officer's use of force was not justified. Justification can include any circumstance where the officer is under threat, or others may be under threat without immediate action. This alone is an enormous hurdle, because courts have repeatedly ruled that this doesn't just protect officers who were genuinely under threat, but also those who felt threatened.

However, in a rare instance of the current Supreme Court making things more reasonable, last year's Barnes v. Felix ruling tossed a decision from the hyper-conservative Fifth District. This ruling narrowed the circumstances in which an officer can apply deadly force—or, at least, kept them from ballooning absurdly.

The description of the case by the Cato Institute makes it clear why Barnes may be very relevant to Good's shooting.

In 2016, Ashtian Barnes was killed by Harris County, Texas, Deputy Constable Roberto Felix, following a traffic stop for unpaid tolls. As Barnes apparently tried to drive away, Felix jumped onto the moving car and indiscriminately opened fire, killing Barnes instantly.

The Fifth Circuit cleared Felix's actions, writing that in the "moment of threat," the officer was clearly in danger and was justified in shooting Barnes. However, the Supreme Court reversed that ruling.

Last spring, the Supreme Court unanimously held that a full review of the “totality of the circumstances,” including the nature of the offense and the events leading up to the incident, is relevant to determining the reasonableness of force.

In Barnes, the initial charges were barely sufficient to warrant a traffic stop in the first place, and Felix was under no threat until he placed himself in peril by grabbing onto Barnes' car. He may have been frightened in the moment, and for the Fifth Circuit, that was enough, but in the totality of circumstances, it's not enough.

That "totality of circumstances" requirement also happens to align with Minnesota law.

The circumstances in Barnes seem to almost perfectly overlap with what happened with Renee Good. As multiple videos have shown, Good's car had only blocked a one-way street for a handful of minutes. She was already in the process of moving out of the way when Ross and other ICE agents approached the car, and would have already been gone had she not stopped to wave another vehicle to pull around her. Her last exchange with Ross was, at worst, snarky, but non-confrontational and contained no threats.

Assuming Ross was in front of her vehicle at all, he was only there because he placed himself in front of the vehicle after Good was already attempting to leave the area. Good was traveling at low speed, was turned away from Ross and other officers, and had barely begun to move when Ross opened fire.

Good's offense, if any, was minor. The threat against Ross, if any, was of his own making. The totality of circumstances in this case is not in Ross's favor. That's especially true of additional shots he fired at Good from beside or behind the vehicle. There are no reasonable grounds for these shots.

Hennepin County police, like those in many other jurisdictions, are actually forbidden from shooting into a moving vehicle in any circumstance. under the very reasonable understanding that a vehicle in motion doesn't automatically stop if the driver is dead.

This doesn't mean that a Grand Jury might not still determine that Ross had reason for his action. The number of cases in which officers have walked away from the use of deadly force seems almost limitless.

Another potential complication comes from the discovery that this is not the first time Ross has been involved in an incident with a car. Federal court records show that last June, Ross approached a car driven by a Guatemalan man, Roberto Carlos Muñoz, and attempted to apprehend him.

According to court testimony, Ross arrived in an unmarked vehicle, approached Muñoz, and ordered him to exit his car. When Muñoz didn't respond, Ross punched through the side window and attempted to wrest control of the car. Muñoz responded by hitting the gas. As NBC News reported, Ross claimed to have used a taser in an attempt to stop Muñoz.

“I was yelling at him to stop,” Ross testified of Robert Muñoz-Guatemala, who was found guilty last month of assault on a federal officer with a dangerous or deadly weapon. “Over and over and over again at the top of my lungs.”

Ross said in his testimony that he feared for his life and fired his Taser repeatedly at Muñoz-Guatemala.

“It didn’t appear that it affected him at all,” Ross said.

Vance raised this incident as a defense of Ross.

“That very ICE officer nearly had his life ended, dragged by a car six months ago with 30 stitches in his leg, so he’s a little sensitive about being rammed by an automobile,” Vance said at the White House on Jan. 8.

However, what this testimony actually shows is that Ross already had a history of dealing poorly with people inside vehicles and didn't know how to properly and safely deal with such a situation. If he was truthful in his claim that he attempted to use a taser in the earlier incident, this also shows an agent primed to skip over any attempt at non-lethal force and go straight for his gun.

Videos show that Ross pulled his gun before Good had begun to move forward, and fired even as he was still holding up his phone in his other hand. This could indicate that he was traumatized, or simply infuriated, by the earlier incident. In effect, he was primed to kill Good as retribution for the perceived wrong he had suffered from Muñoz.

In addition to murder, there are additional charges that could be levied against both Ross and other ICE agents on the scene—and these charges apply equally to peace officers and civilians.

Videos show that ICE agents refused to allow a doctor who was on the scene to approach the vehicle and blocked ambulance access to the area. Both of these are felony violations of Minnesota law with penalties up to five years imprisonment. If Good's death was found to be connected to the delay of treatment, all involved could face additional charges of manslaughter.

However, there's still one more hill to climb before charging Ross, and it's a steep one.

Whether or not Ross is a peace officer, he certainly is a federal agent. Vance and others have claimed this gives him "absolute immunity" from state prosecution.

This is, in legal terms, utter bullshit.

Federal officers are broadly immune from state prosecution for taking actions specifically authorized by federal law in a case that goes back to an 1890 incident in which a federal agent shot a man who was threatening a member of the Supreme Court.

Neagle established a two-prong test for this type of immunity from state criminal law: (1) Was the officer performing an act that federal law authorized him to perform? (2) Were his actions necessary and proper to fulfilling his federal duties? If the federal officer satisfies this test, he or she is immune from prosecution for violation of state law.

The DOJ would certainly argue that Ross was acting to perform his duties as an ICE agent. Any State prosecution would need to show that Ross's actions were excessive or unjustified.

This could be much harder than getting past the leeway given to police use of deadly force. Like the question of whether or not an ICE agent is a peace officer, there are few recent cases to reference, especially when it comes to an agent who was on duty. In short, States simply haven't done much to test the immunity of federal officers, even when those officers have performed unnecessary acts of violence.

The murder of Good was clearly not required to enable the immigration enforcement actions of the ICE officers. That doesn't mean a judge, jury, or federal court might not see a way to grant Ross his magic get-out-of-everything card.

Is Ross a peace officer? Probably not. Was this a justified shooting? No. Can he be prosecuted? Yes.

Will those charges survive federal challenges? Let's find out.