People think civil rights enforcement flows from federal to state. In practice, it’s now reversing. States must become the backstop against federal abuse.
https://www.justsecurity.org/129071/federalism-civil-rights-excessive-force-prosecutions/
The historical model
Eric Holder testified in 1999 about the Justice Department’s “backstop policy”:
“the Department works with state and local officials and would generally defer prosecution in the first instance to state and local law enforcement… we are also in a position to ensure that, in the event a state cannot or will not vindicate the federal interest, we can pursue prosecutions independently.”
But cooperation was always rare:
“any fair reading of American history shows that working together in the enforcement of civil rights has been the rare exception.”
The current crisis
“over the last weeks and months, that division has been forcefully exploited and reasserted by the Trump Administration. There will be no cooperation, for example, between federal and Minnesota law enforcement in the investigation of the ICE agent who killed Renee Good. There will be no federal civil rights investigation at all.”
“Federal law enforcement is carelessly and recklessly violating rights… At the same time, federal civil rights enforcement is being methodically eliminated.”
The constitutional mechanism
The Supreme Court established that federal officials have immunity for legitimate duties (In re Neagle, 1890), but:
“when a federal official’s actions are not ‘necessary and proper’ to fulfilling official responsibilities, the possibility of state prosecution remains.”
Historical precedent: Arizona v. Manypenny
A border patrol agent confronted three Mexican men near the Arizona border:
“Manypenny shouted for the man to stop. When he didn’t, Manypenny fired his shotgun three times in the man’s direction, hitting him in the upper spine, severing the spinal cord and leaving him a quadriplegic.”
Federal courts upheld his state conviction for assault with a deadly weapon.
The challenge
“Drawing the line between legitimate federal law enforcement use of force – necessary and proper to fulfill law enforcement responsibilities – and illegitimate and excessive use of force can be difficult. Sometimes it requires frame-by-frame analysis.”
“The Trump administration has already resisted any cooperation with state and local officials examining federal enforcement… it has refused to share information and evidence about the shooting of Good with Minnesota officials.”
Beyond criminal prosecution
Governor Pritzker created the Illinois Accountability Commission to “gather evidence of potentially unlawful conduct by federal agents.” Minnesota and other states created online portals for reporting federal agent misconduct.
The necessity of support
“We cannot ask state officials to put themselves in the line of the administration’s fire if we are not prepared to back them up.”
The ABA resolution:
“recognizes both the necessity of protecting legitimate federal functions and the equally compelling obligation to ensure that federal authority is not abused.”
Why this matters
“With the dramatic expansion of ICE and the limited vetting and training of new agents being deployed around the country, oversight is critical.”
“The capacity and willingness of state and local prosecutors to act… in defense of their citizenry when federal actors exceed their legal bounds, is not only consistent with the structure of American government but vital to it.”
Even imperfect oversight:
“provides, at a minimum, some affirmation of the values of justice and fairness, and as resistance to the abuse of power. It is a critical feature of our constitutional order, even when only partially successful.“