Cook County’s top prosecutor lays out road map for charging federal agents

Stating that “no one is above the law,” Cook County State’s Attorney Eileen O’Neill Burke announced new protocols Thursday her office will follow to prosecute federal agents for unlawful use of force.

The move comes months after the Operation Midway Blitz immigration enforcement campaign in Chicago and the suburbs led to numerous violent confrontations between federal agents and protesters. They included a deadly shooting in West suburban Franklin Park and a near-fatal shooting in Chicago’s Brighton Park neighborhood.

In both cases, the official federal government accounts of what occurred have faced scrutiny amid contradictory bodycam footage and other evidence.

The new policy announced Thursday will apply to cases involving a death, shooting, act of violence or use of force incident related to federal immigration enforcement.

“If a federal law enforcement agent commits a crime, my office will not hesitate to act, in accordance with state law,” Burke said. “This protocol establishes clear, legally sound guidelines to ensure we have a responsible and effective path to pursue accountability.”

The protocol provides guidelines to law enforcement agencies for cases involving a federal agent, including how the Supremacy Clause of the Constitution may affect state authorities’ ability to prosecute.

The clause is a significant impediment to state prosecution of federal agents. Under it, federal agents have immunity from state prosecution for actions taken within their lawful authority and when they reasonably believe their conduct was necessary to perform their duties.

Burke’s office said Thursday that it began drafting protocols to prepare for the “unprecedented situation” in Cook County: bringing state charges against a federal immigration officer for on-duty conduct.

Under the policy, the office can support, but not lead, investigations into criminal conduct, and will conduct an independent review of evidence to determine whether felony charges are supported.

Among those who reviewed the measure prior to its implementation Thursday were the Office of the Illinois Attorney General and the Illinois State’s Attorneys Association.

Kane County State’s Attorney Jamie Mosser, the association’s president, said the group strongly supports the measure.

“As prosecutors, we have a legal and ethical obligation to carefully assess complex issues — including federal immunity, subpoena authority, and jurisdiction — to determine whether the burden of proof can be met,” she said. “The protocol will equip prosecutors’ offices to successfully evaluate these factors and make the right charging decision.”

In Cook County, cases will be presented to the state’s attorney’s The Law Enforcement Review Unit, whose work typically is limited to the conduct of local law enforcement officers. On-duty conduct of federal law enforcement officers has been reviewed instead by the United States Attorney’s Office.