ICE Shooting in Minnesota: lethal force must be justified each time the trigger was pulled.

Civil rights attorney weighs in on the Fourth Amendment.

The ICE Agent in Minnesota appears to have used excessive force in violation of the Fourth Amendment to the U.S. Constitution which prohibits government actors from unreasonable seizures. When law enforcement kills someone it constitutes a “seizure” of the person.

In Graham v. Connor, the Supreme Court created a test for determining whether a peace-officers use of force is excessive.

The Fourth Amendment "reasonableness" inquiry is whether the officers' actions are "objectively reasonable" in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. The "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation.

The victim’s surviving family members will likely file a civil lawsuit against the ICE agent and Department of Homeland Security for wrongful death and violations of the Fourth Amendment under 12 U.S.C. § 1983. The defendants will likely first file a motion to dismiss claiming immunity. This gives the trial court judge at the beginning of the case to apply some alleged facts to the Graham test. Regardless of whether the motion to dismiss is granted or denied, either party will likely appeal the issue.

I predict the State of Minnesota will file a separate criminal case against the ICE agent and charge him with murder and/or lesser included offenses. In that situation, the U.S. Constitutions Supremacy Clause will likely be raised and the case would be removed from Minnesota State Court to Federal Court. However, the criminal case would still be prosecuted by Minnesota prosecutors, not the U.S. Attorney’s office.

Typically when criminal charges are filed against an officer in these situations, the civil case against him will be stayed pending the outcome of the criminal case.