In 1871, bands of masked men were riding through southern states, terrorizing Black people with murders, beatings and rapes. Local officials did little to stop the violence because many of them supported, or in some cases were members of, the Ku Klux Klan.
In response, Congress passed a law, often referred to as the Ku Klux Klan Act, meant to protect people from civil rights violations by state and local officials. The law has become a key piece of police accountability, granting Americans the ability to file civil rights lawsuits in federal court against state and local officers. But one important group remains exempt — federal agents.
Following the recent slayings of Renee Good and Alex Pretti by federal immigration officers in Minnesota, along with other violence against civilians, some experts are questioning why that same 155-year-old law doesn’t apply to employees of the federal government.
Scenes of brutal arrests and violent encounters with federal agents have become commonplace in U.S. cities where the Department of Homeland Security has launched immigration crackdowns in recent months, especially in Minneapolis-St. Paul.
Pretti, a 37-year-old ICU nurse for the Veterans Administration, was fatally shot in Minneapolis by Border Patrol agents on Saturday after he tried to protect a woman an officer had shoved to the ground.
When federal agents use excessive force, infringe on people’s civil rights or fail to offer medical aid, experts say it’s especially difficult to hold them accountable in federal court.
“There’s basically no right to sue federal officers for almost anything, including constitutional violations and including use of deadly force,” explained Joanna Schwartz, a law professor at UCLA who is an expert on police misconduct lawsuits.
When local or state police use excessive force, victims or their families often file federal civil rights lawsuits. Cleveland paid Tamir Rice’s family $6 million; Baltimore agreed to $6.4 million for the family of Freddie Gray; and Minneapolis awarded George Floyd’s family a $27 million settlement.
Schwartz said it is “a cruel irony” that Congress originally passed the civil rights law in response to masked men committing abuses allowed by state and local officials following the Civil War.
“And here we are, 150 years later, and we are seeing federal officers blatantly violate the Constitution and laws,” she said. “And states are beginning to recognize that they need to step in to protect the citizenry — their residents — from violence and overreach by federal officers.”
In a recent opinion piece for The New York Times, two legal scholars argued that the loophole for federal officers should be closed and the new law should be named in Good’s honor. Jonathan Ross, the officer who killed Good, could possibly face state criminal charges, but legal experts say the prosecution would face a number of challenges.
Lawmakers’ refusal to close this loophole in the 1871 act for federal officers is a bipartisan policy failure that has persisted for decades, said Alex Reinert, a professor at New York City’s Cardozo School of Law who is an expert in civil rights and constitutional law.
“The Supreme Court has made it hard and Congress has done nothing about it,” he said. “The other piece of it is: Every presidential administration, every Department of Justice of every presidential administration for the last 45 years, has argued vigorously for a limitation of the right to sue federal officials. So, whether it’s a Democratic administration or a Republican administration, they are all responsible for the space in which we find ourselves today — even as the current administration must be held accountable for flouting constitutional bounds in unprecedented ways.”
Reinert said the killings of Pretti and Good have brought national attention to this issue, and that “has the potential to generate momentum for change,” but that effort may face significant resistance from the administration and Congress.
Illinois passed a law last year that would allow people to sue federal officers in state court for violations of their civil rights while conducting immigration enforcement. The Trump administration quickly sued to nullify it.
Ken Wallentine is the retired chief of the West Jordan, Utah, Police Department and the former chief of law enforcement for the state attorney general, and has served as a consultant on civil and criminal use-of-force investigations. He has concerns about what he’s seen unfolding lately in Minnesota.
“I have a lot of questions about the tactics and use of force,” Wallentine said.
If these deadly and violent encounters involved Minneapolis or St. Paul police instead of ICE and Border Patrol agents, he said, there would likely be some level of accountability happening, at least on the city, county or state level. There would be an investigation by internal affairs or the local prosecutor, or possibly an inquiry by another elected official or public body. For instance, Minneapolis police officer Derek Chauvin received more than 22 years in prison for the 2020 killing of George Floyd.
To be sure, not all incidents involving excessive force claims against local police end in criminal convictions or lawsuit victories. But in Wallentine’s previous roles, he had to answer to a mayor or an attorney general who could fire him. And state and local police have to obtain and maintain licensure through a state board that can revoke it. That same system doesn’t exist for federal officers, he said.
“There are so many accountability tools that don’t apply to federal agents,” he said.
In fact, several Trump administration officials have told ICE officers that they have “absolute” immunity.
In the wake of Floyd’s death, dozens of states passed laws aimed at reducing use of deadly force by police and creating a duty for officers to intervene in cases of excessive or illegal force or misconduct. This month, Colorado officials launched a system for reporting complaints of misconduct by federal agents.
“Nobody is above the rule of law, including federal agents such as ICE or border patrol,” Colorado Attorney General Phil Weiser said in a statement.
Minnesota’s attorney general has a form for reporting violations of civil rights by federal officers. The state also has a specific law requiring someone who fires a gun and knows or suspects they have injured someone to immediately render aid. Some experts have argued that the agents present at Good’s death could be prosecuted under that law, because they reportedly never rendered aid and prevented a physician from doing so. After agents shot Pretti, they didn’t perform CPR and initially refused to allow a doctor to examine him before relenting, according to the doctor’s account in court records.
In the case of Good’s death, Wallentine noted, “you’ve got the head of the agency jumping up and down and thumping her chest and saying this was a bad person,” leading him to believe any internal investigation may not be fair or impartial.
Similarly, within hours of Pretti’s death on Saturday, Trump administration officials labeled him a “domestic terrorist” and someone trying to “massacre law enforcement.”
Wallentine said he was a vocal advocate for a Utah law passed in 2022 that set minimum standards for an officer’s duty to intervene and report misconduct. He’s authored articles for police publications examining lawsuits in which courts held officers liable for not intervening when witnessing excessive force.
“We require of our state and local officers a high standard of conduct, and we have a number of means to ensure that that standard of conduct gets met,” Walletine said. “And we ought to, as a society, expect the same out of anyone that we give a badge and a gun and the right to infringe on constitutional liberties. We ought to have the same standards of accountability [for federal law enforcement] — and we don’t.”
Federal officers have used violent tactics during a number of incidents in Minneapolis-St. Paul: A family with six young children had tear gas thrown at their vehicle when they were trapped in protest traffic. The mother had to perform CPR on her infant, and the other children were treated at a hospital for smoke exposure, the Minnesota Star-Tribune reported. Agents mistakenly arrested a U.S. citizen at gunpoint in his own home, hauling him out in his underwear. Protesters have been sprayed in the face at close range with chemical irritants.
On the morning of Jan. 11, Orbin Mauricio Henríquez-Serrano reportedly was on his way to work when he stopped to fuel up at a gas station in St. Paul.
As Henríquez-Serrano sat in his car at the gas pump, Border Patrol agents in military-style fatigues and tactical gear swarmed his vehicle and ordered him out. In bystander video of the incident, Henríquez-Serrano appears to be on his phone when federal officers surprise him. Within seconds, they smashed the window and forcibly removed the 27-year-old from a Jeep, flipping him face down on the ground, cuffing his hands while at least one agent knelt on his back. He was soon limp and unconscious before agents took him away in a minivan.
Some who watched the footage of Henríquez-Serrano’s arrest initially feared he might have died. He survived, and records show he was held at an ICE detention facility in El Paso the following week. HuffPost reported on Monday that he was deported.
Homeland Security officials didn’t respond to questions about the incident. The agency addressed criticism of the arrest in a public post on X: “The subject refused to obey lawfully given orders and during that time a crowd formed. After multiple warnings and several minutes, Border Patrol broke the vehicles [sic] window and arrested the illegal alien.”
His sister, Consuelo Henríquez-Serrano, told The Marshall Project in a phone interview that her brother did not have legal immigration status but planned to seek asylum, fearing gangs and corruption in his native Honduras. She spoke to her brother briefly on the phone from the detention camp, but was unsure about the extent of his injuries.
“He’s not a criminal, he didn’t harass anybody, he didn’t have guns — they just took him,” she said.
