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Why the involvement of U.S. Marshals complicates potential legal proceedings around the killing of Winston Smith

Though Smith was shot by sheriffs deputies from Hennepin and Ramsey Counties, they were acting under the authority of the U.S. Marshals Service, part of the federal government.

U.S. Marshals Service
The U.S. Marshals Service has the ability to deputize local police officers as part of a task force, meaning the deputized officers exercise Marshals authorities like crossing jurisdictional lines and not wearing body cameras.
United States Marshal Office of Public Affairs

Details about the case of Winston Smith Jr., a Black man shot by authorities in a Minneapolis parking garage, are scarce.

According to initial reports by authorities, members of the U.S. Marshals Service North Star Fugitive Task shot and killed Smith on June 3 after he fired a gun from the car he was in. But the passenger who was in the car with Smith, who was injured during the incident, says she never saw a weapon on Smith. Because they were acting as part of a U.S. Marshals task force, the officers who shot and killed Smith — identified only as sheriff’s deputies from Hennepin and Ramsey Counties — were not wearing body cameras.

The Minnesota Bureau of Criminal Apprehension is investigating the shooting. But with no video evidence of the incident, some questions are likely to remain unanswered. And the involvement of the U.S. Marshals, part of the federal government, makes the legal issues more complicated than a killing involving only a local police department.

The U.S. Marshals Service has the ability to deputize local police officers as part of a task force, meaning the deputized officers exercise Marshals authorities like crossing jurisdictional lines and not wearing body cameras. In this case, members of the task force were a combination of marshals and deputized local officers from the Anoka, Hennepin and Ramsey County sheriff’s offices, the Minnesota Department of Corrections and U.S. Immigration and Customs Enforcement.

The BCA says it cannot release the identities of the officers who shot Smith due to a Minnesota law that protects the identities of officers working undercover.

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With one person dead and another injured, legal proceedings related to this case — whether criminal or civil — are inevitable. But in a case involving sheriff’s deputies from two counties and several other police agencies besides, all acting under the authority of the federal government, who is legally liable?

Working under federal authority

Criminal charges against police officers who kill people in the line of duty are pretty rare. If Smith was indeed firing at members of the task force, they are legally permitted to use deadly force to protect themselves and members of the public.

While the passenger in the car with Smith said she did not see Smith use a gun, on Tuesday night, new search warrants revealed what the BCA collected at the parking garage where Smith was killed: a Smith and Wesson M&P 380 handgun from the front driver side of the vehicle and six Blazer 380 Auto cartridge cases from the driver’s side, center console and passenger side in the front of the vehicle. They also collected a loaded Smith and Wesson M&P 380 magazine with seven rounds in a duffel bag, according to the warrant. Outside the vehicle on the passenger side where officers fired, the BCA collected 15 FC 9mm Luger cartridge cases on the ground. The agents also collected bullet fragments, several phones, clothing and over $800 cash as evidence in the case.

Even if criminal charges were to be brought against the officers who shot Smith, they could only be brought by the federal government. Local district attorneys do not have the legal power to prosecute federal agents, including police officers serving as task force members. The Justice Department can shield them from litigation.

“It’s highly unlikely that there will be any kind of charges [brought against the officers] because the kind of charges the federal government brings are similar to what you see with [Derek] Chauvin — whether they violated somebody’s constitutional rights,” said Mary Moriarty, a former Hennepin County chief public defender. “It’s hard enough to get a conviction when there’s video of it. In this case, I just don’t see the federal government pressing charges.”

Though a criminal case seems unlikely, several civil lawsuits are possible, including civil suits from Smith’s family, mothers of his children and the passenger who was in his car when he was killed.

Mark Osler, a law professor at St. Thomas University and former federal prosecutor, said there are two main issues that could result in a civil lawsuit: a wrongful shooting by the federal task force, and the issue of members of the task force not wearing body cameras.

“The question is, who is your suit against, and what lawyers tend to do in that situation is throw everybody into the mix, from the federal marshals to Ramsey and Hennepin Counties,” Osler said. The validity of those suits will get figured out in court, according to Osler.

A civil claim against the federal government must go through the Federal Tort Claims Act, which is a complicated law that allows citizens to sue the federal government under specific circumstances.

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“We’re in the investigation stage and considering all options,” said Racey Rodne, an attorney with Minneapolis law firm McEllistrem, Fargione, Rorvig & Moe, who is representing the passenger.

Has anyone successfully sued the Marshals?

People have tried to sue the U.S. Marshals before. In 2018, the American Civil Liberties Union for the District of Columbia sued the U.S. Marshals Service for “its abusive, degrading conduct during what should have been a routine eviction.”

In D.C., the U.S. Marshals Service is responsible for executing evictions. This responsibility is unique to D.C. In 2015, a woman and her 12-year-old daughter were at home in their D.C. apartment when two marshals “stormed into the apartment shouting and with guns drawn.” The woman was in her nightgown and pleaded for time to dress, but the marshals entered the bedroom to find her completely naked as she tried to change. She put on a top and grabbed a pair of pants — her daughter’s — that ripped as she tried to put them on. She and her daughter were then marched past an eviction crew of 20 men who the ACLU says laughed and taunted them.

In apparent response to the lawsuit, the Marshals Service announced that in the summer of 2018 it would roll out policy directives to provide tenants better notice of upcoming evictions and to prevent tenants’ belongings from being dumped on the sidewalk by the eviction crew. The case was settled in August 2018.

The ACLU of Oregon also sued the Department of Homeland Security and the Marshals for inhumane conduct against protesters during demonstrations that occurred in 2020 after the police murder of George Floyd in Minneapolis. The ACLU has filed multiple lawsuits against federal entities like the Marshals Service, but they have the power of hundreds of civil rights attorneys and legal aids.

It’s less common for smaller firms, like Rodne’s, to take on the Marshals. A Marshall Project investigation into U.S. Marshals Service shootings found that only 13 of the 177 shootings in their database of shootings involving the Marshals resulted in lawsuits. But that hasn’t stopped Rodne or his client.

“We’re determining the most efficient way to move forward,” Rodne said. The attorney said potential suits against Hennepin and Ramsey Counties are a first priority, but a federal lawsuit isn’t out of the question.

“We’re looking at what’s the best way to represent our client and her claim,” Rodne said.