Jill Burcum: Minnesota to ICE: No one is above the law

If Washington won’t hold federal immigration agents accountable for misconduct, Minnesota will.

Criminal charges filed Monday here against Immigration and Customs Enforcement agent Christian Castro sent this powerful warning to agents across the country:

Lawless behavior will not go unanswered, even if there’s a federal badge on your chest and you’ve been told you have “ absolute immunity.”

Hennepin County Attorney Mary Moriarty commendably made that plain when her office charged Castro with four felony counts of second-degree assault and a misdemeanor count of falsely reporting a crime. The charges stem from a January night when Castro allegedly fired a shot into a Minneapolis home, wounding a man inside named Julio Sosa-Celis and putting children there at risk.

The agent then told authorities the occupants had attacked him with a shovel and broom. But federal prosecutors later dropped related charges against the home’s occupants after video and other evidence contradicted Castro’s account.

Four months have now passed, and it is unclear if Castro has been disciplined or remains on the job. I asked the U.S. Department of Homeland Security (DHS) and ICE about Castro’s status. Statements on Tuesday from both agencies avoided the “remains on the job” question. The other comments suggest he could be disciplined but has yet to be.

Thankfully, Minnesota is pursuing accountability with righteous urgency.

Moriarty may be the first county or state prosecutor in the country to bring criminal charges against a federal agent for conduct during the Trump administration’s immigration sweeps. The case sends a signal to ICE agents operating not just in Minnesota, but across the country: If the federal government won’t police its own, someone else will.

“If you commit a crime in this state, we will investigate it. And if a crime was committed, we will charge it,” Moriarty told me in an interview.

A month ago, Moriarty also charged Gregory Donnell Morgan Jr., another ICE agent assigned to Minneapolis, with two counts of second-degree assault after he pointed a gun at two civilians during a rush-hour road-rage incident on Hwy. 62 on Feb. 5.

Moriarty has been methodical, building cases carefully, then moving decisively once she has the evidence to proceed. She has teamed up with the Minnesota Bureau of Criminal Apprehension (BCA) in an investigative environment that the federal government made as difficult as possible. Federal agents initially promised cooperation after each of the three Operation Metro Surge shootings in Minneapolis — Renee Good, Alex Pretti and Sosa-Celis — and then failed to collaborate.

In the Castro case, Moriarty had a crucial advantage. The BCA got to the scene quickly and was able to establish Castro’s identity. She also had the Justice Department’s own acknowledgment, embedded in its motion to dismiss charges against Sosa-Celis, that video and other evidence materially contradicted key parts of Castro’s account of what happened that night.

Moriarty anticipates a legal fight. Castro, who lives out of state, will almost certainly try to have the case moved to federal court. That might complicate things, but Moriarty and Attorney General Keith Ellison remain confident. If the case goes to federal court, they said that Minnesota state law still applies, a Minnesota prosecution team still tries it, and any conviction is a state conviction.

That last point is important. It means Trump could not pardon Castro. Ellison invoked the historic Boston Massacre prosecutions as well as an 1890 Supreme Court case to make the point that states have always had the power to hold federal agents criminally accountable within their borders.

When I asked ICE and DHS about this case, the response I received managed to argue two contradictory things in the same statement.

“These actions by Minnesota sanctuary politicians are unlawful and nothing more than a political stunt,” a DHS spokesman said. But the statement didn’t stop there. It went on to declare that lying under oath “is a serious federal offense” and that “the U.S. Attorney’s Office is actively investigating these statements,” with potential “disciplinary action, including termination of employment, as well as potential criminal prosecution” to follow.

The feds’ statement closed with this: “The men and women of ICE are entrusted with upholding the rule of law and are held to the highest standards of professionalism, integrity, and ethical conduct. Violations of this sacred sworn oath will not be tolerated.”

Moriarty and Ellison noted the obvious problem.

“I think it’s nonsensical. How do you start off saying that what we’re doing is unlawful — and then say that lying is a terrible thing and that they are actively investigating?” Moriarty said.

Ellison was more pointed, saying the agencies were talking out of both sides of their mouth. He noted that they denounced Minnesota’s prosecution as a political stunt while conceding the agent may have committed the crimes Minnesota has charged Castro with.

Hopefully, the legal groundwork pioneered in Minnesota becomes a model for other states where the Trump administration’s immigration sweeps have sparked controversy and allegations of misconduct.

Moriarty is part of a coalition of prosecutors across the nation who are sharing legal strategies, learning how to navigate federal removal procedures and preparing their local law enforcement partners to document and preserve evidence if federal agents come to their communities.

Sadly, an even bigger battle for justice lies ahead. Moriarty has charged two agents where she had enough evidence to proceed. But Moriarty, Ellison and the BCA have had to sue the federal government to obtain evidence in the deaths of Good and Pretti after federal authorities blocked state investigators from crime scenes and reneged on cooperation promises.

That makes what Moriarty, Ellison and the BCA are doing an act of political courage. They are taking on the federal government, and a vengeful presidential administration, on behalf of victims who have no one else fighting for them. In a moment when many elected officials have chosen to look away rather than pick a fight with a Washington, D.C., that conscientious commitment to justice deserves to be recognized.

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