Does Illinois have the power to prosecute federal agents for violations of Illinois law?
Yes!
States can prosecute federal officials for violations of state laws. This power has existed and been used – for good and evil – since the early 1800s. Northern states used their state laws against federal agents to resist the re-capture of previously enslaved people under the Fugitive Slave Act. Southern states tried to use their state laws against federal agents to resist desegregation.
In 1985, Santa Clara County, California prosecuted a postal worker who killed a bicyclist. In 1992, Idaho prosecuted an FBI sniper who killed an unarmed bystander during the siege of Ruby Ridge. That case never made it to trial, however, because a new district attorney took office and dropped the charges for political reasons.
Want a deep dive into this subject? Check out the University of Wisconsin Law School’s State Democracy Research Initiative, “Explainer: Can States Prosecute Federal Officials?” published July 17, 2025.
Are federal agents immune from prosecution under state law?
No!
Federal officials facing state criminal charges can raise a defense under the Supremacy Clause of the United States Constitution. But to succeed in this defense they must prove their actions were (1) authorized by federal law; and (2) necessary and proper in order to satisfy their federal duties.
Let’s take the case of Marimar Martinez. Charles Exum rammed his car into her car, and then shot her five times as she tried to drive away. That’s not authorized by federal law. And it was not necessary to do his job, which was civil enforcement of the immigration laws.
Observing, photographing, and otherwise documenting federal law enforcement in public spaces is constitutionally protected activity. Responses like throwing people to the ground for merely performing these activities would not qualify for limited immunity. So don’t let local officials who lack the courage or conviction to investigate or prosecute ICE or Border Patrol agents tell you that it’s not possible.
Does the Chicago Police Department need Mayor Johnson to issue an Executive Order before they investigate crimes committed by federal agents?
No!
The CPD has the authority to investigate and should not need to be compelled by an executive order to do their job. Superintendent Snelling has chosen not to investigate the crimes of federal agents.
Cook County State’s Attorney Eileen O’Neill Burke claims that she can’t prosecute Charles Exum, or any federal agent, unless law enforcement first investigates. Is that true?
No!
The most common way to prosecute is from a referral from law enforcement. But that is not the only way a State’s Attorney can bring criminal charges. They can also go before a grand jury at any time and present evidence that there is probable cause to believe a crime was committed.
State’s Attorney Burke could bring Marimar Martinez before a grand jury and, based on that testimony alone, ask the grand jury to find there is probable cause to prosecute Charles Exum. Unfortunately, Burke is more interested in playing it safe.
Does Cook County State’s Attorney Burke’s office have the ability to investigate crimes separate and apart from the CPD?
Yes!
The Cook County State’s Attorney employs 120 sworn officers in its Investigations Bureau, who could be assigned to investigate the killing of Mr. Gonzales if the office were interested in prosecuting crime in Cook County. According to the Cook County State’s Attorneys own website, “The Special Prosecutions team takes on the toughest cases to keep our communities safe and uphold justice for all.”
IL-FAFO 