It's 100% Legal to Arrest ICE Agents. Democratic Governors Need to Step Up.

A masked ICE agent stands guard on June 3, 2025, as federal officers raid Las Cuatro Milpas in Minneapolis, Minnesota. (Nicole Neri/Minnesota Reformer)

Bottom Line Up Front B.L.U.F.

Here’s what you do today:

Call your governor and say exactly this: “Federal agents are committing state felonies including burglary, kidnapping, and assault. File criminal charges now. If local law enforcement refuses to do their jobs then they can fired or arrested. We elected you to protect us. Do it. If you don’t take this seriously then expect us to begin contacting all of your donors to ask if they are aware of your compliance.”

**Additional Author Note: I released this previously and have since updated to include more details on the Supremacy Clause and methods for encouraging action to defend public safety, Constitutional rights, and human rights.**

George Retes served in Iraq. Federal agents detained him for three days without checking his ID. Job Garcia holds a PhD. ICE arrested him for filming a raid. Three American children were deported to Honduras while their parents begged for help. The youngest was two years old, the oldest had Stage 4 cancer.

Warrantless federal agents are committing state felonies every day. Breaking and entering. Kidnapping. Assault with deadly weapons. These are crimes with mandatory prison sentences. And Democratic governors have the power to prosecute these agents under state law.

Federal agents claim Supremacy Clause immunity protects them from state prosecution. But this immunity only applies when they’re acting lawfully within federal authority. When they exceed that authority, when they violate federal law itself or act unreasonably, they lose that protection. The question isn’t whether states can prosecute federal agents. It’s whether federal agents are actually authorized to do what they’re doing.

Wisconsin law professors at the State Democracy Research Initiative laid out the legal framework. When federal agents exceed their lawful authority, they can face state prosecution. The Supreme Court’s immunity protections only cover lawful federal acts. Kicking down doors without judicial warrants, detaining citizens without probable cause, abducting children: these aren’t lawful federal acts. They’re crimes.

Yes, federal agents will immediately try to move cases to federal court, claiming they were just doing their job. Let them. Make them stand before a federal judge and argue that administrative warrants signed by ICE officers, not judges, authorize home invasions. Make them explain why pointing guns at children is “necessary and proper” to immigration enforcement. Force them to defend the indefensible on the record.

Every day spent in legal battles is a day ICE agents wonder if they’ll face state prosecution. Every court hearing is a news cycle about federal agents committing crimes. Every removal petition to federal court is an admission that states have enough power to threaten federal operations.

The legal authority exists right now. When ICE kicks down a door without a judicial warrant, that’s burglary under California Penal Code 459: up to 6 years in prison. When Border Patrol detains citizens without authority, that’s kidnapping under Penal Code 207: up to 8 years. When agents point weapons at unarmed families, that’s assault under Penal Code 245: up to 4 years. When Tom Homan threatens governors for not cooperating with deportations, that’s criminal threatening under multiple state statutes.

History proves this works. Before the Civil War, Northern states prosecuted federal marshals who captured escaped slaves. Wisconsin arrested an enslaver and two U.S. deputy marshals, charging them with kidnapping and assault. During Prohibition, states from New York to Montana prosecuted federal agents for assault, theft, and murder. When federal courts allowed prosecutions to proceed, finding agents’ force “unreasonable” or their actions not “integral to federal duties,” agents changed their behavior. Even when prosecutions failed, they forced federal agents to justify their actions and created political costs for overreach.

These aren’t administrative violations. They’re felonies. And governors can prosecute felonies.

Federal agents know they’re pushing legal boundaries. They use administrative warrants signed by ICE officers, not judges. Federal courts have already ruled these don’t authorize home entries. Yet agents use them anyway, betting that no one will hold them accountable.

A single governor could change that calculation overnight. Announce that state prosecutors will charge federal agents who violate state criminal law. Direct the Attorney General to review evidence and file charges. Yes, agents will claim immunity and remove cases to federal court, but that’s where they’ll have to prove their actions were both federally authorized AND reasonable. Let federal agents explain to a judge why kicking down doors without judicial warrants isn’t burglary.

The federal government would immediately seek protection for its agents. Let them. While lawyers argue in federal court, ICE agents would face a choice. Continue raids that might land them in state prison, or wait for clear legal authority. Operations would slow. Behavior would change. That’s a win for justice.

This is the point. Create friction. Force delays. Save lives while courts deliberate.

Trump can’t pardon state crimes. He can rage, threaten, tweet in all caps. None of it reaches state prosecutions. Federal courts might eventually protect federal agents, but “eventually” could take months or years. Every day of uncertainty is a day families aren’t destroyed.

Republicans understand this power. They’re prosecuting doctors for providing healthcare. Charging teachers for having books. They use state criminal law as a weapon despite federal protections for these activities. They don’t wait for permission. They force the legal fight.

California shows both the opportunity and the failure of nerves. After three citizen children were deported, after veterans were detained, after PhD students were arrested for filming, California passed Senate Bill 627. A mask ban. A misdemeanor with a $10,000 fine.

At least they’re doing something, which is worth praise. However, they also have the tools to charge these agents with kidnapping, burglary, and assault. They have 4,500 lawyers in the Attorney General’s office. They have victims ready to testify. They have video evidence.

If Republicans will do this over books, why can’t Democrats do this in response to widespread illegal federal abductions? Does anyone believe this administration cares to only do this to immigrant communities? Everyone is in danger if we are tolerant in the face of injustice.

Governor Newsom said California lacks “legal authority for federal agents” regarding the mask ban. But every state has authority to prosecute kidnapping. Every state can charge assault. Every state can prosecute burglary. The authority exists. What’s missing is the will to use it.

Thirteen state attorneys general, led by California’s Rob Bonta, declared federal agents must follow state law. Now enforce it. The $50 million California allocated for legal defense could support criminal prosecutions. The Democratic Attorneys General Association could coordinate strategy across states. Imagine California, New York, Illinois, and Massachusetts simultaneously prosecuting federal agents. The infrastructure exists.

Some will say this is too aggressive. That we should work within the system. That we should respect federal authority.

Unchecked power always expands its targets. What starts with immigrants never ends there.

The system isn’t working. Federal authority is being abused. And Democratic governors have the power to fight back using state criminal law.

Will federal courts ultimately shield federal agents? Maybe. But forcing that fight would transform enforcement procedures. Every agent would hesitate. Every raid would carry risk. Every door kicked down might lead to state prosecution.

Even prosecutions that don’t result in convictions force federal agents to justify their actions, create political costs, and slow enforcement while cases are litigated. The process itself becomes the deterrent.

Here’s what you do today.

Call your governor and say exactly this: “Federal agents are committing state felonies including burglary, kidnapping, and assault. File criminal charges now. We elected you to protect us. Do it.”

Call your Attorney General. Say: “ICE agents are breaking our criminal laws. When will you file charges? Every day you wait, our rights are being trampled.”

Document everything. Record federal agents operating without judicial warrants. File criminal complaints with local prosecutors. Make them explain why they won’t prosecute.

Feel free to read the legal framework. The Wisconsin State Democracy Research Initiative has published the full legal analysis at https://statedemocracy.law.wisc.edu/featured/2025/explainer-can-states-prosecute-federal-officials/. Share it with your representatives.

Organize. Show up at your governor’s office with fifty people. Demand prosecution of federal agents who break state law. Don’t leave until you get an answer.

Share this widely. Every governor needs to hear this demand from thousands of constituents.

The federal courts might intervene. So what? Make them defend agents who kick down doors without warrants. Make them protect officers who kidnap citizens. Make them explain why pointing guns at children isn’t assault.

Democratic governors have a choice. Use every tool available to protect your people, or admit you’re choosing not to. The criminal codes are written. The violations are documented. The prosecutors are ready.

All that’s missing is the courage.

For now.

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Conservatism: America’s Personality Disorder

https://a.co/d/3l6qZb9

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References

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Ableman v. Booth, 62 U.S. (21 How.) 506 (1859). https://supreme.justia.com/cases/federal/us/62/506/

American Civil Liberties Union. (n.d.). The Constitution in the 100-mile border zone. https://www.aclu.org/documents/constitution-100-mile-border-zone

Bonta, R. (2025, January 23). Joint statement from thirteen state attorneys general: State and local law enforcement cannot be commandeered for federal immigration enforcement [Press release]. California Department of Justice. https://oag.ca.gov/news/press-releases/joint-statement-thirteen-state-attorneys-general-state-and-local-law-enforcement

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California Penal Code § 207 (2025).

California Penal Code § 245 (2025).

California Penal Code § 459 (2025).

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U.S. Immigration and Customs Enforcement. (2025, September 16). 287(g) jail enforcement and warrant service officer programs. https://www.ice.gov/identify-and-arrest/287g

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