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By Marjorie Cohn / Consortium News
On Jan. 7, less than a mile from where George Floyd was murdered nearly six years ago, ICE (U.S. Immigration and Customs Enforcement) agent Jonathan Ross shot and killed Renee Nicole Good as she tried to drive away. Once again, video footage filmed by bystanders recorded a brutal murder by a member of law enforcement, engendering outrage around the country.
Good was a 37-year-old mother of three and a U.S. citizen who was beloved by her family and her community.
Multiple news outlets, including The New York Times, have analyzed the video recordings and concluded that Good’s vehicle was turning away from Ross when he began shooting her.
Yet President Donald Trump, Vice President J.D. Vance, and Department of Homeland Secretary (DHS) Secretary Kristi Noem all claimed that Ross was justified in gunning down Good.
Immediately after Ross shot Good, Trump wrote on his social media platform,
“The woman screaming was, obviously, a professional agitator, and the woman driving the car was very disorderly, obstructing and resisting, who then violently, willfully, and viciously ran over the ICE Officer, who seems to have shot her in self defense.”
In fact, cell phone footage reveals that after one of the agents yells, “Get out of the fucking car,” Good briefly reverses, turns the steering wheel towards the passenger side and drives ahead, after she smiled and said, “That’s fine, dude. I’m not mad at you.” As Ross fired the shots at her, he could be heard to yell, “Fucking bitch.”
Vance declared that Ross acted in self-defense and said that Ross has “absolute immunity” from prosecution. Noem called Good’s actions “domestic terrorism.” All of those claims are false.
A Minnesota prosecutor should charge Ross with first-degree murder.
Given the politics of the case it would seem wise for the state to take charge of the prosecution and to resist efforts by federal authorities to take over the case.
Minnesota Murder Statutes
Under Minnesota law, a person who causes the death of a human being with premeditation and the intent to kill is guilty of first-degree murder and shall be sentenced to life imprisonment.
Intent to kill can be shown by circumstantial evidence. Ross’ shooting at Good’s head from a short distance is proof of an intent to kill.
Premeditation can occur in moments; there is no minimum amount of time required. It can happen over a matter of months or in a matter of seconds. Ross has a gun in his hand, methodically raises it and shoots at Good multiple times, while saying, “Fucking bitch.” This is evidence of premeditation.
There is sufficient evidence for a prosecutor to prove beyond a reasonable doubt that Ross is guilty of first-degree murder.
When a person has the intent to kill but acts without premeditation, he or she is guilty of second-degree murder, and may be sentenced to a maximum of 40 years in prison.
Even if a jury does not find beyond a reasonable doubt that Ross premeditated the murder of Good, it would likely convict Ross of second-degree murder in light of the strong evidence of his intent to kill her.
Causing the death of another by perpetrating an eminently dangerous act with a depraved mind and no regard for human life constitutes third-degree murder which carries a maximum of 25 years in prison and/or a maximum fine of $40,000.
Shooting at Good’s head through the window of her car constituted an eminently dangerous act with Ross’ depraved mind and no regard for human life, which support a conviction of third-degree murder.
Minnesota Manslaughter Statutes
First-degree manslaughter occurs when a person intentionally causes the death of another in the heat of passion provoked by words or acts that would provoke a person of ordinary self-control in similar circumstances.
It can also occur by causing the death of another when committing a misdemeanor with such force and violence that death or great bodily injury was reasonably foreseeable (and doesn’t amount to murder in the first- or second-degree). Manslaughter in the first degree carries a maximum prison term of 15 years and/or a maximum fine of $30,000.
Second-degree manslaughter is committed when a person’s culpable negligence creates an unreasonable risk, and he or she consciously takes a chance of causing death or great bodily injury. This offense carries a maximum prison term of 10 years and/or a maximum fine of $20,000.
Although at a minimum, Ross’ actions satisfy the elements of manslaughter, they also constitute evidence of murder. A Minnesota prosecutor should charge him with first-degree murder.
Even if state criminal charges are filed against Ross, in some circumstances federal law allows a federal officer defendant to move to dismiss the case in state court and federal prosecutors would then bring charges in federal court.
Given the posture of the Trump administration in blaming the victim, Good, for her own death, it is impossible to imagine that the Department of Justice would indict Ross unless state charges are filed against him first.
In a federal prosecution, appeals in Minnesota would be heard by the U.S. Court of Appeals for the Eighth Circuit, with 10 of the 11 active judges appointed by Republicans. An appeal from the circuit court would go to the U.S. Supreme Court, where there a 6-3 right-wing supermajority.
Supremacy Clause Immunity
In his defense, Ross would try to “remove” the state case to federal court by arguing that he has immunity from state prosecution.
Supremacy Clause immunity is not absolute immunity. It applies only when a federal official acts within the scope of their lawful federal duties. Federal officers are protected against state prosecutions if they can show that although their actions violated state law, they were “’necessary and proper’ in the discharge of their federal responsibilities.”
The inquiry would be whether Ross’ shooting of Good was necessary and proper to enforce the federal immigration law. If he acted beyond the scope of his duties, or behaved in an egregious or unjustified manner, the case would remain in Minnesota state court. Shooting Good dead was not within the scope of Ross’ ICE duties.
Once a state case is removed to federal court, the federal court will apply state substantive law.
The Claim of Self-Defense
Ross will claim that he acted in self-defense when he shot Good so the killing was justified. To prove self-defense, Ross would need to show that shooting Good was necessary to resist or prevent an offense that he reasonably believed exposed him or another to death or great bodily harm.
Minnesota’s use-of-force laws authorize officers to use deadly force only when a reasonable officer would think it necessary to protect themselves or others from death or great bodily harm that “is reasonably likely to occur absent action by the law enforcement officer.”
It allows officers to shoot only when the threat “must be addressed through the use of deadly force without unreasonable delay.” Thus, if the threat can be addressed without the use of deadly force, or if it’s reasonable to delay, the use of deadly force would violate Minnesota law. Ross could have stepped out of the way and gotten Good’s license plate number instead of shooting her.
Last term, the U.S. Supreme Court decided Barnes v. Felix, which said that in assessing the reasonableness of an officer’s use of deadly force, courts must look beyond simply the moment the officer fires the weapon. The court “must consider all the relevant circumstances, including facts and events leading up to the climactic moment.” This would require consideration of what the officer did leading up to the confrontation, including Ross’ decision not to step out of the way of Good’s car.
Minnesota law requires the “duty to retreat.” It requires individuals to avoid the use of deadly force if it is possible to do so safely, before they act in self-defense.
The National Consensus Policy and Discussion Paper on Use of Force, a collaborative effort of the most significant law enforcement organizations, says that “Firearms shall not be discharged at a moving vehicle” when the vehicle is the only weapon involved unless other means of addressing the threat the vehicle presents, such as moving out of the path of the vehicle, “have been exhausted (or are not present or practical).”
Under DHS’ use of force policy, officers are required to de-escalate the situation. They are essentially “prohibited from discharging firearms at the operator of a moving vehicle.” And when doing so, they must consider the threats to the safety of fellow officers and innocent bystanders by an out-of-control vehicle.
The DHS policy says, “Deadly force shall not be used solely to prevent the escape of a fleeing subject.” Deadly force can be used when “[t]he vehicle is being driven in a way that’s an immediate threat and no other objectively reasonable defensive option exists.”
A reasonable officer would not walk into the path of a moving car. He would de-escalate the situation by moving away and getting Good’s license number.
ICE Continues to Terrorize Americans & Immigrants
On the morning of Jan. 7, a decision was made that the Minnesota Bureau of Criminal Apprehension (BCA) and the F.B.I. would conduct a joint investigation into the fatal shooting of Good. The BCA began to coordinate investigative work.
That afternoon, the F.B.I. told the BCA that the investigation would be led solely by the F.B.I. and the BCA would no longer have any access to evidence, interviews or case materials required for a thorough and independent investigation. The Justice Department’s Civil Rights Division’s criminal section, which usually handles investigations of police shootings, has been excluded from the probe. What are they trying to hide?
Hennepin County Attorney Mary Moriarty called on members of the public to provide any video or other evidence involving the shooting directly to her office.
In the past four months, federal officers have fired on at least 10 people who were in their vehicles.
The National Lawyers Guild (NLG) issued a statement calling the killing of Good “a harrowing reminder that ICE continues to terrorize Americans and immigrants.” The NLG statement continued:
“The Trump administration is using the language of ‘domestic terrorism‘ to justify killing someone for protecting their neighborhood by legally monitoring ICE activity, and to provide excuses for these agents’ actions. While it is not a new tactic, it is a disturbing level of brazenness and lies coming from an administration that characterizes anyone who opposes its actions as ‘domestic terrorists.’ ”
Meanwhile, upward of 1,000 demonstrations took place this weekend in cities across the country to protest Ross’ killing of Good.
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Marjorie Cohn
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, dean of the People’s Academy of International Law, and past president of the National Lawyers Guild. She sits on the national advisory boards of Veterans For Peace and Assange Defense, and is a member of the bureau of the International Association of Democratic Lawyers and the U.S. representative to the continental advisory council of the Association of American Jurists. Her books include Drones and Targeted Killing: Legal, Moral and Geopolitical Issues.