The Cook County State’s Attorney’s Office (CCSAO) has implemented a sweeping protocol to ensure it can move forward with prosecuting ICE agents should a review of the evidence determine that felony criminal charges are warranted. 

The protocol, which was shared with and evaluated by criminal justice stakeholders, calls for the CCSAO to use all available prosecutorial tools to support law enforcement investigations into the use of force by federal immigration officers.

Months ago, CCSAO’s legal team began the process of drafting the Federal Immigration Enforcement Action Response Protocol to prepare for an unprecedented situation in Cook County: the possibility of bringing state charges against a federal immigration officer for on-duty conduct. 

State’s Attorney Eileen O’Neill Burke directed her office to conduct a rigorous legal analysis and codify the procedure following the devastation that occurred during the ICE surge in Minneapolis, which resulted in two fatal shootings of civilians by ICE agents. 

The CCSAO protocol applies to cases involving a death, shooting, act of violence, or use of force incident related to federal immigration enforcement.

“No one is above the law — including both ICE agents and prosecutors,” Burke said. “If a federal law enforcement agent commits a crime, my office will not hesitate to act, in accordance with state law. This protocol establishes clear, legally sound guidelines to ensure we have a responsible and effective path to pursue accountability.”

The CCSAO protocol provides guidance to law enforcement agencies as they gather evidence or seek to preserve sworn testimony related to an investigation. It also clarifies that in these cases, the CCSAO can support, but does not lead, investigations into criminal conduct. The CCSAO will conduct an independent review of evidence that is presented to it by a law enforcement agency to determine whether felony charges are supported. 

The Illinois Attorney General’s Office and the Illinois State’s Attorneys Association reviewed the protocol and provided feedback. 

“Law enforcement officers are entrusted with extraordinary authority to serve the public and keep our communities safe,” Illinois Attorney General Kwame Raoul said. “When that authority is abused or escalates into unlawful violence, prosecutors must take action if the burden of proof can be met.” 

The protocol provides clear and legally sound guidelines to law enforcement agencies and prosecutors during different phases of a potential case involving a federal agent, from the investigation to the charging decision. This includes: 

• How CCSAO can assist law enforcement agencies seeking a Grand Jury subpoena for a victim or witness who could provide relevant evidence or for physical, documentary, and/or video evidence.
• The process for presenting an investigation to CCSAO’s Law Enforcement Review Unit, which will make a charging decision for all felony offenses.  
• Legal analysis of how the supremacy clause, evidence in possession of the federal government and the potential of removal to federal court may affect the CCSAO’s ability to meet its burden of proof. 

The CCSAO shared the protocol with the Illinois State’s Attorneys Association so that it can be used as a model for other prosecutor’s offices conducting similar reviews. 

The Federal Immigration Enforcement Action Response Protocol became effective on Feb. 19 and was distributed to all division chiefs, assistant state’s attorneys, and relevant personnel. The protocol will also be shared with state and local law enforcement agencies.