With the recent shooting of Renee Good by an ICE officer, the contemporary debate about the role of law enforcement, justifiable use of force, and what is or is not a constitutional enforcement of the law, has been sparked. As per the usual, the majority of people are approaching this situation without considering what their first principles are, and are approaching any analysis with hindsight and counterfactual revisionism. In terms of whether the shooting was justified, many (typically on the left) approach the shooting as baked into the greater discussion on immigration enforcement, and whether the Trump administration is constitutionally are legally able to conduct immigration enforcement in the way that it is being conducted. Their conclusion is that the enforcement is unconstitutional, therefore any actions any ICE officers engage in are inherently illegal. On the other side, many believe (typically on the right) that the ICE raids are constitutional, and therefore the actions of the ICE officers are inherently legal as a law enforcement mechanism.
There are many layers to this issue, and the majority of people in the discussion are not analyzing the layers as individual layers, but rather as a whole. This is leading to a breakdown in discussion, where both sides fail to even agree on what the circumstances of the situation are. The baseline frame of the discussion is not even agreed upon. There are broadly three layers to this discussion, with numerous sub-topics nested within the layers.
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What are constitutionally protected law enforcement activities?
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Is it legal for law enforcement to engage in law enforcement like activities even if they are overall engaging in an unconstitutional action?
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Do we (the American people) want law enforcement to engage in law enforcement activities, even if the overall action they are conducting is unconstitutional?
In an odd and perverse way, both the right and left are in agreement with each other on point 2, and circumstantially agree on point 3 that they want law enforcement to enforce the law even if it violates the constitution. The main point of contention is point 1, where the left largely does not care for the constitution anymore, and the right has a rather warped and tyrannical view of the constitution that would make Alexander Hamilton blush.
Starting off with point 2, the history of law enforcement action has more or less been cemented both by tradition, and judicial branch precedent to be deferential to law enforcement activities. Most people, when they see police engaging in law enforcement activities, largely are ambivalent. Most people believe that seeing a police officer arrest someone, or pull someone over, that they are inherently engaging in a constitutionally protected activity, enforcing a constitutional law that is moral and ethical. The idea that police are not experts of constitutional law or tradition (with most likely not even having read the constitution), or that it is possible for the legislature to pass an unconstitutional law (or the executive to order the enforcement of an unconstitutional actions) does not even cross most people’s minds. Even the Supreme Court believes that law enforcement actions are inherently constitutional.
With hindsight, we know that not all law enforcement activities are constitutionally protected, legal, or even moral or ethical. Even in relatively recent history, the civil rights movement was filled with numerous law enforcement actions that are known today to be indefensible. The idea that an unconstitutional law, and that law enforcement would enforce an unconstitutional law, does exist. The main disagreement is about what an unconstitutional law looks like.
Both the left and the right support creating an enforcing unconstitutional laws. Recently, the right, during the Global War on Terror, created a whole data collection apparatus that bulk collects data on virtually all US citizens. The flimsy veneer of legality that allows the bulk collection to exists rests on the idea that people are given due process in FISA courts (courts which are not under the judicial branch, have classified oversight which no ordinary citizen could review, and are convened secretly without the knowledge of the person in question). The left meanwhile, supported the pandemic era lockdowns, most of which were unconstitutional due to governors overstepping the boundaries of what an emergency is legally, creating and enforcing “mandates’ (which are not constitutional or legal at all) and the numerous federal government executive branch bureau’s and agencies creating law out of thin air by creating new guidelines and regulations.