An ICE Officer Killed Someone. Is that Okay?

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* THIS IS NOT LEGAL ADVICE* FOR EDUCATIONAL PURPOSES ONLY*

As an attorney, I feel that it is my ethical duty to speak up when I see injustice and correct misunderstandings of the law. In the days since Renee Good was killed by an ICE officer, there have been many justifications given for her death; many have nothing to do with whether the ICE agent reasonably feared for his life.

Most have more to do with character assassination than anything to do with Ms. Good’s actions. This is something that is all too familiar for those who pay attention to police shootings. When police kill minorities, the first thing the media does is dig up dirt. If they can’t find dirt, they make it. For instance, Black men and boys are made out to be “thugs” by using pictures taken from social media pages. Black women are made out to the girlfriends of gang members and bad mothers. In the case of Ms. Good, a fake arrest record was immediately distributed. The government called her a “domestic terrorist” and lied about her ramming ice vehicles and driving maniacally. Conservative media outlets latched on to her motherhood and claimed she was bad mother who didn’t care about her children.

Aside from blatant attempts at character assassination, people that are defending the ICE Officer’s actions usually do so by saying things like Ms. Good was committing a crime,; she wasn’t obeying orders; she was protesting ICE all morning; she was blocking traffic; and she was attempting to evade arrest. Here’s what most people making these excuses are missing:

(1) Committing crimes does not automatically mean the person is subject to a death sentence.

The Constitution of the United States of America guarantees the right to due process to everyone on U.S. soil. The government is required to prove beyond a reasonable doubt that a person is guilty of a crime before they can carry out a sentence. This includes the death penalty. Most crimes are not punishable by the death penalty. When a crime is punishable by the death penalty, the sentence is not carried out on the street by police officers or ICE agents.

(2) Obstruction is not a crime punishable by death.

Yes, it is a crime to obstruct federal and local law enforcement and even ICE agents when they are trying to carry out their legal duties. A person can be arrested for obstruction. They cannot be sentenced to death for obstruction.

(3) ICE agents have the ability to arrest people but only in limited circumstances.

ICE’s authority is limited to immigration matters and sometimes matters of homeland security (like assisting in detaining members of international crime syndicates). They cannot arrest someone for crimes that are not related to these things. They can arrest someone if that person prevents them from carrying out their legal functions, however. They do not have authority to carry out general law enforcement functions – think arresting people for blocking a roadway when that person is not preventing them from detaining an immigrant.

(4) Neither ICE nor law enforcement have the authority to kill someone for failing to follow their instructions.

The use of deadly force is authorized only in limited situations. A reasonable officer must believe that his life or the life of another person is in imminent danger to use lethal force. Lethal force is not authorized when a suspect is fleeing.

(5) ICE is subject to qualified immunity.

Like actual law enforcement, ICE agents are covered under qualified immunity. This means that if they kill or maim someone in the course of fulfilling their legal duties, they cannot be found guilty of a crime or be held liable in civil court for the harm caused.

Despite JD Vances’ confusion, qualified immunity is not absolute. There are a few limits. An officer must have acted like a reasonable officer would given the situation. Officers also cannot deliberately put themselves in harm’s way to create a situation that justifies the use of force.

(6) You cannot be executed because you have previously been found guilty of crimes.

A person’s previous criminal record cannot be used to justify the government killing that person (unless the person has been tried, convicted, and sentenced to death for that crime). Law enforcement and ICE cannot kill a person because of their criminal record.

(7) The United State’s Constitution allows citizens to protest, criticize, and film government agents.

It is not illegal to film law enforcement and ICE as long as you are not preventing them from carrying out their lawful duties. ICE is not authorized to use force against people who are protesting. No law enforcement is allowed to do that – subject to the protestors remaining peaceful and not putting officers or other people in danger.

The First Amendment covers your right to peacefully protest and to say what you want to say as long as you are not inciting violence.

Although, I’ve watched many videos of Ms. Good’s killing and from multiple angles and know what I saw, I am aware that people disagree. It is important that a thorough, transparent, and fair investigation be carried out without the bias of an already formed narrative shaping it. It is equally important that we, the People, understand the 7 things I’ve discussed above. These are fundamental to protecting your our rights and democracy.

Congress Banned TikTok. Can Donald Trump Reverse the Law?

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Donald Trump wanted to ban Tiktok. He began promoting the idea of a national ban in 2020. In 2024, Congress passed that ban. It was set to take effect on January 19, 2025; one day before Donald Trump’s second inauguration. However, as the days neared the seeming end of Tiktok in the United States, Trump apparently changed his mind about the app. Two days ago, the newly inaugurated president signed an executive order to postpone enforcement of the law to give him time to find a buyer for ByteDance, Tiktok’s parent company. According to the order, Trump is granted the power to do this by the Constitution. Is he correct? Let’s break it down.

To start, we need to understand the law that Congress passed banning Tiktok in the U.S. The law is called the Protecting Americans from Foreign Adversary Controlled Applications Act. The Act States, “It shall be unlawful for an entity to distribute, maintain, or update (or enable [any of that]) a foreign adversary controlled application by carrying out within the land or maritime borders of the United States any of the following…” The act then lists “providing services” that do or enable the above and “providing internet hosting services” that enable any of the above.

The law itself does not actually shut down TikTok. The United States does not have the power over ByteDance to force it to stop providing TikTok’s services. Nor does it make it unlawful for American citizens to use the app. Americans abroad in other countries can still access the site.The law makes it illegal for phone and internet carriers to give access to users while those users are in the United States. Entities that give this access face a fine of $5,000 per user of TikTok in the U.S.

The law provides an exemption, however, for a “qualified divestiture, ” which is defined as a sale or other transaction that the president decides nullifies the danger of an adversarial country still owning the application or of the adversarial country having control over any operations of the app in the United States. It is this language that Trump is relying on as authority for his executive order halting the TikTok ban for another sixty days.

According to Trump, the issue with who owns ByteDance is one concerning national security, and national security is a power reserved for the president. Therefore, it is within his power to decide if the TikTok ban should be enforced. The Constitution is not detailed when it comes to national security, however. It does not expressly give the president authority over all matters of “national security.” The text grants him authority as Commander in Chief over the Army and Navy. It also gives him authority to make treaties if two-thirds of the Senate agrees. Other than that, it is silent regarding presidential powers to handle national security matters.

The powers the president has historically utilized for national security matters have largely been seen to be granted in order to enable the president to uphold other authority. For example, the president is in charge of the military and so must be the one to oversee matters related to the use of the military. Likewise, the president is in charge of seeing that the laws passed by Congress are “faithfully executed.” Therefore he must have some authority related to policing. 

The question that must be answered is, “If the president’s job is to enforce the laws written by Congress, how can Trump choose to not enforce this law?”

The answer is written in the law itself. The Act expressly states that the president decides if a divestiture is good enough to fall into the exemption and gives him the power to broker the sale. Putting the ambiguous “national security” authority together with the language of the Act, Trump has found what he considers to be authority to pause enforcement of the ban.

Thus, the executive order does not  outright overturn the Act. Indeed, the president does not have the power to overturn legislation that has been passed by Congress and signed into law. Only Congress or the Supreme Court can do that. Instead, the executive order tells the Justice Department, the Attorney General specifically, to not enforce the law until a later date. During this time, Trump intends to broker a sale of ByteDance to a buyer; a sale that by law he has the power to determine is good enough to keep American internet companies out of trouble for enabling access to TikTok. If he can’t entice ByteDance to sell, the law will be enforced starting in April.

Can the president end birthright citizenship?

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One of Donald Trump’s campaign promises was to end automatic citizenship for millions of individuals born in the United States to undocumented immigrant parents every year. Today, following Trump’s inauguration, a White House spokesperson stated that Trump will make good on this promise and issue an order that will do just that. Many legal experts, however, are stating that there will undoubtedly be legal challenges to any executive order that purports to end what is known as “birthright citizenship” because it can’t be done without changing the Constitution.  Ultimately, the question of whether the president can end birthright citizenship will be decided by the United States Supreme Court. The decision they make could upend decades of court decisions and affect the rights of millions of people. So, let’s break it down.

Section 1 of the 14th Amendment of the United States Constitution states, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Up until now, it has been assumed that this means anyone born in the United States is automatically a citizen of the United States – hence the term “birthright citizenship.” You may or may not remember from history class that the 14th Amendment was drafted after the U.S. Civil War to grant equal citizenship to the newly freed black slaves. This is why it was very important for the Amendment to expressly state that any person born in the U.S. is a citizen of the U.S. In order to protect the rights and liberties of former slaves and their children, States needed to be prevented from proclaiming that parents had to be citizens to grant citizenship on their children. Yes, this was a thing certain states wanted to be able to do to keep black people from voting, holding office, owning land, etc.

Anyone with a basic understanding of the U.S. Constitution should know that the President cannot unilaterally change any part of it. Changing the Constitution requires ratifying amendments or calling a Constitutional Convention, neither of which is likely to garner much support. But is it possible there is a way the president can get around changing the words of the Consitution and still end the long-standing practice of birthright citizenship?

The Trump team thinks so and is apparently going to give it a shot. To understand how, a person must understand the separation of powers and the roles of the different branches of the U.S. government. So, once again, think back to history class or civics class. At some point, you hopefully learned that the United States government is made up of 3 branches: legislative, executive, and judicial. The Constitution gives each branch its job. The Legislative Branch consists of the two houses of Congress. The Executive Branch consists of the Office of the President, and the Judicial Branch is made up of the Supreme Court and the lower courts (Courts of Appeals, District Courts, etc). The Legislative Branch is charged with making the laws. Only Congress can pass laws affecting the entirety of the United States. The Judicial Branch is in charge of interpreting those laws. The Supreme Court is the ultimate decider of what the Constitution and the statutes Congress writes mean. The Executive Branch is in charge of carrying out the laws that Congress wrote and can also veto those laws.

You may be asking, “If Congress is the only body that can write or re-write the laws, how is Donald Trump planning to change *this* law?” The answer is he is banking on the Supreme Court agreeing with his interpretation of the words “and subject to the jurisdiction thereof” to mean that a person’s parents must be in the United States legally at the time the person is born for the 14th Amendment’s grant of citizenship to apply.  “But wait!” You may be exclaiming. I thought you said the Executive Branch only enforces the laws; it doesn’t interpret them!” Yes, but the Executive Branch is enforcing the law by deciding who is and is not a citizen according to the law and who can therefore be legally removed from the country.

The Executive Branch makes these interpretive decisions all the time through administrative agencies. These agencies, created by Congress with enabling statutes, are usually given the power to make regulations. These regulations have to exist within the parameters set by Congress. So, the Executive Branch interprets the enabling statutes to determine what regulations to make and enforce. The interpretations are then subject to judicial review to determine if the agency’s interpretation is correct.

Because administrative agencies are part of the Executive Branch, they are ultimately controlled by the President. The president decides priorities for administrative agencies and sets overall agendas and policies. This is why changing administrations can mean extreme changes for the rights of individuals. This is particularly true when it comes to immigration.

Immigration policy is the domain of the Justice Department, which, despite its name, is an administrative agency and is not part of the judiciary. Trump’s plan appears to be to sign an executive order that will instruct the Justice Department to interpret the 14th Amendment’s language to mean that individuals whose parents are not citizens or legal immigrants in the United States do not fall under the jurisdiction of the United States.

You may be asking yourself at this point, “What does it mean for someone to be under the jurisdiction of the United States? When is someone NOT under the jurisdiction of the United States?” These are really good questions. Historically, a person inside the boundaries of the United States has been considered to be under the jurisdiction of the United States except in limited circumstances, mainly diplomats. A person who is born in the United States while their parent is present in the U.S. as a diplomat of a foreign country is not a U.S. citizen because diplomats remain under the jurisdiction of their home country. This lack of jurisdiction is why they have diplomatic immunity. It is also why the United States can kick diplomats out of the United States. Foreign armies and native tribes are also not considered to be under the jurisdiction of the United States. Native Americans are legally United States citizens. However, Tribal Governments are sovereign.

The argument for this interpretation should be an uphill battle. After all, the Trump administration would have to argue that individuals in the U.S. illegally are not subject to the jurisdiction of the United States. This outcome would be ludicrous, and historically, the courts have not been in favor of ludicrous outcomes. If undocumented immigrants are not subject to the jurisdiction of the U.S. they could not be arrested and tried under the laws of the United States. Although this would mean the government could deport infants and children more easily, it would also mean that undocumented immigrants who commit crimes could not be charged for them in the states where the crimes occur. Essentially, they would have immunity from prosecution and the U.S.’s only recourse would be deportation.  I doubt the conservative majority of the Supreme Court or a majority of Americans would be in favor of this result. 

So, regarding the question, “Can the president end birthright citizenship,” I think the answer is no. Without a change to the Constitution, which the president cannot do through an executive order, birthright citizenship is the law of the land.

Hello from your friendly neighborhood attorney!

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Welcome to the neighborhood! I’m Katy, and I have been a licensed attorney since 2016. My goal as your friendly neighborhood attorney is to help you better understand how laws, regulations, judicial decisions, policies, and politics work and affect your life or the lives of those who also live in this community called the United States of America. *Please understand that I am not here to give you legal advice, and I am not going to represent you in a legal matter.*
Are you curious why your social media is overflowing with posts about a SCOTUS decision or why your college-aged daughter is protesting some legislation with her classmates? I’m here to help you understand what is going on and why it matters. So, feel free to ask me your questions (just remember I won’t give you legal advice) or check back here to see what is going on with a trending legal topic. Your friendly neighborhood attorney is here to help!