The recent deaths of American citizens at the hands of federal law enforcement agents renews the persistent, and at times intractable, debate over Juvenal’s question, which echoes through time: Quis custodiet ipsos custodes? Who, indeed, will guard the guardians?
The state’s power over the individual is most acutely on display when agents of the government use deadly force against a citizen. That force can involve a split-second decision by a police officer on the street, it can occur in a systemic setting such as a jail or prison when a person dies of abuse or neglect, and it can take the form of a court-sanctioned execution in a death-penalty state or after a conviction under a qualifying federal offense.
All police-related deaths should elicit deep concern from a free people living under the rule of law. Answering the concerns related to “why” does not need to be complicated and divisive. There are well established procedures to conduct effective police-use-of-force investigations without requiring court intervention. I will not enter here into the complicated world of prosecuting or suing federal law enforcement agents (see one examination here).
What I will suggest is that Wisconsin is a national model of how officer-use-of-force investigations may appropriately be conducted, and it is also an example of codifying the moral obligations of those empowered—as a last resort—to take the lives of our fellow citizens. The President, Congress, and particularly the officials appointed to lead federal law enforcement officers should follow Wisconsin’s example.
In Wisconsin, the answer to Juvenal’s question is that elected district attorneys guard the guardians, usually with the full support of state and federal partners and defined oversight from courts. My experience is that the vast majority of law enforcement leaders locally, statewide, and nationally not only support independent, professional, transparent, and accountable reviews of force incidents involving their officers and agents (often referred to as “critical Incidents”).
They also affirmatively want that kind of oversight and are often the strongest advocates of it. For they understand it to be essential to their legitimacy as public servants. I will go further by saying that the guardians of the guardians—the prosecutors themselves—also want and invite independent processes and places where people aggrieved by their decisions can go to question, review, and, most importantly, find a venue to seek redress when a decision is rendered. That escape valve has often been the United States Department of Justice, but when federal officials are either conflicted or refuse to act, locally elected prosecutors and attorneys general and state court systems are essential to fair accountability.
To be clear: Having an accountable process does not mean everyone agrees with the decision at the conclusion of the process. That was rarely the case in the hundreds of incidents that I reviewed, as district attorney of Milwaukee County. What matters is that the process exists; it has layers of transparency and accountability, and the final decision can be appealed in a regular order.
The response from the United States Government to the deaths of Renee Good and Alex Pretti, thus far, has been a spectacular failure that calls in question the moral legitimacy of the leadership of the Department of Homeland Security, the Department of Justice, and the leadership of the White House. It can still be salvaged.
How? By the U.S. government’s working cooperatively with local and state officials in a professional and transparent manner and providing a clear path to justice for citizens harmed by federal agents. It should not require an alliance of local district attorneys to advocate for such a process. Significant reform is still needed to hold federal agents statutorily accountable, but in that absence, there is still a viable and important process that can and must occur to preserve the integrity of the evidence and the possibility of redress.
In 2013, Wisconsin was the first state in the country to pass a law requiring an outside law enforcement agency to lead deadly-force investigations. And as recently as 2023, Wisconsin passed a law that affirmatively elevated the primacy of the sanctity of human life for officers serving the community. I think it valuable to read both § 175.44 and § 175.47 of the Wisconsin Statutes, with the understanding that § 175.47 is the foundation requiring that an investigator from an outside independent agency be the lead investigator of the death investigation and that, at the conclusion of the investigation, the matter be submitted to the district attorney for review. Once the review is concluded, the reports related to the investigation must be published. That is the independence prong.
Section 175.44, the “moral legitimacy” prong, merits emphasis:
(2) Use of force.
(a) The sanctity of human life. In serving the community, law enforcement officers shall make every effort to preserve and protect human life and the safety of all persons. Law enforcement officers shall also respect and uphold the dignity of all persons at all times in a nondiscriminatory manner.
(b) Use of force. When using force, a law enforcement officer is required to act in good faith to achieve a legitimate law enforcement objective. A law enforcement officer is authorized to use force that is objectively reasonable based on the totality of the circumstances, including:
- The severity of the alleged crime at issue.
- Whether the suspect poses an imminent threat to the safety of law enforcement officers or others.
- Whether the suspect is actively resisting or attempting to evade arrest by flight.
(c) Deadly force. A law enforcement officer may use deadly force only as a last resort when the law enforcement officer reasonably believes that all other options have been exhausted or would be ineffective. A law enforcement officer may use deadly force only to stop behavior that has caused or imminently threatens to cause death or great bodily harm to the law enforcement officer or another person. If both practicable and feasible, a law enforcement officer shall give a verbal warning before using deadly force.
From the first week of my tenure as Milwaukee County District Attorney in 2007, I personally responded with my investigators to the scene of all police-related deaths and uses of deadly force, whether fatal or non-fatal. Why? I first ran for district attorney in the wake of the Frank Jude scandal and publicly committed to responding independently, transparently, and accountably to make sure that everything possible was done to document and preserve what occurred.
First, we investigated to determine if a potential crime was committed and to begin appropriate accountability measures—including bringing additional outside state and federal resources to help in the investigation and securing appropriate court orders as needed.
Second, we contacted and communicated with the family of the decedent (and ultimately with the community) about what happened and allowed them to see all the evidence available.
And third, we created a process that allowed an officer who did the right thing under difficult circumstances to continue serving the community.
I believe the Milwaukee County process deeply informed and served as a model for the legislative changes in 2013.
The final aspect of the protocol is that I always invited outside review of my decisions related to these incidents, by the FBI, the U.S Attorney, the Wisconsin Attorney General, or citizens requesting an independent review from the chief judge of the county circuit court. It was essential, in my view, to allow a path forward for citizens to peacefully seek their day in court—whether through civil justice or criminal.
Several use-of-force incidents in my tenure involved federal agents. I was empowered and supported by my federal colleagues to take the lead on those investigations, and they were always done professionally, impartially, and collaboratively, regardless of who the President of the United States was at the time.
The deaths of American citizens at the hand of Immigration and Customs Enforcement and Border Patrol agents requires all the steps I just described above. It is simply wrong and wrong-headed to cut out local authorities in the investigations. Federal authorities do not have the experience and expertise in death investigations that large metropolitan police agencies and state investigators possess through tragically constant repetition. Communication with impacted loved ones is required by law, and support is usually provided through local victim services. And most importantly, there must be a place where citizens can go to seek redress, from the actual or perceived harm done to them, that is independent, transparent, and locally accountable.
Local county and state prosecutors nationwide are willing to step up to act as the safety valve when federal authorities may be acting irresponsibly and unaccountably. This may be the inverse of the path towards accountability we have seen in the past, but that is also the potential strength of federalism. There are peaceful options to solve the current crisis—let Wisconsin show us a path forward.