Can Prosecutors Choose Which Civil Rights Violations to Pursue?

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On January 13, 2026, the Justice Department announced it would not investigate the killing of Renee Good, a 37-year-old mother of three shot by an Immigration and Customs Enforcement officer on her front porch eleven days earlier. Deputy Attorney General Todd Blanche declared “we won’t investigate whether civil rights were violated.” Eleven days after that, when Border Patrol officers shot and killed Alex Pretti, a 37-year-old intensive care nurse, during a protest, the DOJ reversed course—announcing a federal civil rights investigation after video evidence contradicted the government’s initial claims and massive protests erupted.

That same week prosecutors declined to investigate Good’s death, they arrested civil rights attorney Nekima Levy Armstrong and charged her under the Freedom of Access to Clinic Entrances Act for leading a peaceful protest at a church whose pastor also directs the local ICE field office.

These decisions raise whether prosecutors can choose which violations matter based on who committed them and who the victims are. Legally, the answer is yes—mostly. But the gap between what prosecutors are legally allowed to do and what they should do has rarely looked wider.

Prosecutorial Discretion and Judicial Review

American prosecutors can decide almost anything about a case without explaining why. They decide whether to look into potential crimes, whether to bring charges, which statutes to charge under, and what plea deals to offer. The Supreme Court has held that prosecutors’ choices are presumed valid unless defendants can prove discriminatory intent based on race, religion, or similar protected classifications—a standard so demanding that successful challenges are vanishingly rare.

Prosecutors can decline to look into cases without explaining why. They can pursue some violations aggressively while ignoring identical conduct by different people. They can shift priorities based on political winds. All of this is legal, as long as no one can prove it was motivated by race, religion, or political viewpoint. Proving that is nearly impossible.

Courts have also held that prosecutors’ decisions not to look into cases or charge are generally immune from review. The reasoning: resources are finite, not every violation can be pursued, and courts shouldn’t override the executive branch’s priorities.

Two Killings, Two Investigations

Renee Good was shot on her front porch on January 2, 2026. Alex Pretti was killed on January 24, 2026, during a protest. After the video contradicted the government’s account and protests intensified, the DOJ announced it would investigate.

Both victims were killed by federal officers while acting as government officials. Both cases involved disputed facts. Both raised concerns about whether the force used was reasonable. The initial responses were opposite.

One interpretation: the difference reflects specific facts that justify different treatment. Another: the DOJ is protecting federal immigration operations while being willing to look into Border Patrol only under overwhelming pressure. The opacity of prosecutorial decision-making makes it impossible to know which interpretation is correct.

Protest Prosecutions Under the FACE Act

While declining to look into Good’s killing, federal prosecutors moved aggressively against the people protesting ICE operations. The DOJ charged civil rights attorney Nekima Levy Armstrong, community organizer Chauntyll Louisa Allen, and activist William Kelly under the Freedom of Access to Clinic Entrances Act—a 1994 statute designed to protect against violence at abortion clinics and attacks on places of worship.

The FACE Act prohibits using force, threats, or physical obstruction to interfere with someone exercising religious freedom. It was enacted to stop clinic bombings and violent attacks on worshippers. Applying it to political protest at a church represents either a legitimate extension of the statute or an aggressive expansion that could chill protected speech.

The statute has primarily been used to prosecute violence and threats at abortion clinics. Using it against protesters chanting in a church is different. Whether the protest was disruptive or unwelcome isn’t in dispute—it clearly was. What matters is whether disrupting a religious service through political speech rises to the level of the statutory prohibition, or whether applying the statute this way transforms it into a tool for suppressing activism.

A federal magistrate judge rejected charges against journalist Don Lemon, who livestreamed the protest, suggesting at least one judicial actor found the application questionable.

The same week prosecutors declined to look into a civilian death, they arrested activists protesting the agency whose officer killed her.

DOJ Guidelines and Prosecutorial Constraints

The Department of Justice maintains internal guidelines that purport to constrain prosecutorial discretion. Prosecutors are supposed to apply fair and consistent standards in making charging decisions. They’re not supposed to be influenced by a person’s “race, religion, sex, national origin, or political association, activities or beliefs.” They’re supposed to decline cases where they cannot prove the charges beyond a reasonable doubt with probable confidence of prevailing at trial.

These guidelines aren’t judicially enforceable—they’re internal DOJ policy. But they represent an acknowledgment that prosecutorial discretion, while broad, should be exercised within boundaries.

The contradiction emerges when you consider what obligations prosecutors have before declining to look into a case. Decisions not to take action are presumed not subject to judicial review. A prosecutor’s decision to decline an inquiry is immune from challenge unless someone can overcome the assumption that prosecutors are acting fairly and demonstrate discriminatory intent.

So prosecutors must follow neutral criteria when charging, but face no enforceable obligation when declining to look into cases.

The Legal Standard for Civil Rights Prosecutions

Federal law rests primarily on 18 U.S.C. Section 242, which makes it a crime for government officials to intentionally violate someone’s constitutional rights. The statute was enacted after the Civil War to combat racial violence and remains the primary federal tool for prosecuting violations by law enforcement.

Prosecutors must prove the officer intentionally violated someone’s rights, not that the officer made a mistake. The Supreme Court has interpreted this to require proof that the defendant acted to deliberately take away someone’s constitutional rights, knowing the conduct was unlawful. A mistake of law, failure to understand constitutional requirements, or poor judgment doesn’t suffice.

The problem is that prosecutors can stop an inquiry by deciding early on whether the standard can be met. If a prosecutor concludes an officer was acting in self-defense or that the officer’s actions were reasonable, the prosecution won’t proceed. Self-defense and reasonableness are typically questions of fact that should be resolved through inquiry and, if necessary, at trial—not through preliminary determinations made by prosecutors who are part of the same government apparatus as the law enforcement agencies involved.

Prosecutor Resignations as Institutional Resistance

At least five senior prosecutors in the DOJ’s Civil Rights Division in Washington resigned shortly after Good was killed. In Minneapolis, at least twelve federal prosecutors have resigned or notified the office of their intention to resign, including the office’s second-in-command and the chief of the criminal division.

Federal prosecutors don’t typically resign en masse over policy disagreements. They’re career professionals who’ve spent years building expertise in federal criminal law. According to interviews with prosecutors familiar with the situation, the resignations were triggered by pressure from Deputy Attorney General Blanche’s office to pursue criminal cases against anti-ICE protesters without sufficient evidence and to focus resources on activists rather than on federal agents’ use of force.

These resignations signal internal DOJ concerns about whether prosecutorial discretion is being exercised within appropriate bounds. Prosecutors are the people who know what’s happening inside the system. When they’re resigning in protest, it suggests the problem isn’t perception—it’s reality.

Shift in Civil Rights Enforcement Priorities

The Trump administration’s approach differs markedly from its predecessor. The Biden administration’s DOJ Civil Rights Division prioritized inquiries into police departments’ patterns and practices of unconstitutional conduct. The current administration has announced different priorities.

Deputy Attorney General Blanche announced in May 2025 a new “Civil Rights Fraud Initiative” that uses a fraud law designed to catch government waste to look into violations by recipients of federal funding, particularly focusing on diversity, equity, and inclusion programs in universities and corporations.

This represents a dramatic shift in how resources are deployed. Each president has authority to set DOJ direction and redirect resources toward different categories of cases. But the concern is that this shift has occurred alongside decisions that appear to protect the administration’s allies—federal immigration agents—from inquiry while pursuing the administration’s opponents—anti-ICE activists—aggressively. If the pattern is that the Trump administration looks into cases aligning with its political preferences and declines to look into cases that might criticize its policies, that suggests prosecutorial discretion being exercised in ways that violate treating people fairly and equally under the law.

Proving that pattern would require the kind of discovery and access to government decision-making records that the legal rule making it nearly impossible to prove selective prosecution makes difficult to obtain.

State-Level Accountability Efforts

Minnesota’s attorney general and the Hennepin County attorney have expressed frustration at being excluded from federal inquiries and have attempted to conduct their own. Federal law protects federal officials from state prosecution when acting while doing their federal job properly. But this protection doesn’t apply if the officer broke the law or went beyond their authority.

Minnesota officials have suggested they may pursue state criminal charges if the federal government doesn’t. The Supreme Court has held that states generally cannot prosecute federal officers for conduct performed within the scope of federal duties. But if the federal government’s own prosecutors decline to look into cases, whether state prosecutors can step in to examine conduct they view as violating state criminal law or state constitutional protections remains open.

If federal prosecutorial discretion is unreviewable, and if states are barred from examining federal officers, then federal agents operate in a zone where accountability depends entirely on the willingness of their own employers to look into them.

Informal Constraints on Prosecutorial Discretion

The legal framework says prosecutors have broad discretion but cannot exercise it in ways that involve treating people unfairly or being motivated by illegal reasons like someone’s race or politics. The practical reality is that the evidence needed to prove discrimination is so hard to gather that successful challenges are rare.

But there are other constraints that don’t depend on formal legal challenges. Prosecutor resignations impose costs—institutional knowledge walks out the door, cases are disrupted, morale suffers. When judges reject warrants or dismiss charges, it sends a message that at least some judicial actors find the prosecutorial decisions questionable. Political pressure can force reversals, as happened with the Pretti case.

These informal constraints may be more effective than formal legal limits. The Minneapolis cases suggest we’re testing that in real time. The DOJ initially declined to look into Good’s killing, then reversed course on Pretti’s after public outcry. Prosecutors resigned rather than pursue cases they viewed as lacking evidence. A federal judge rejected charges against a journalist covering the protest. State officials are exploring whether they can look into cases when federal prosecutors won’t.

None of this changes the legal doctrine of prosecutorial discretion. But it may create practical limits on how far that discretion can be pushed before the system pushes back.

Conclusion

Prosecutors can make choices about which violations to pursue, but they can’t make them in a vacuum. When the pattern suggests they’re protecting their own while pursuing their critics, prosecutors resign. Judges reject warrants. State officials explore alternatives. Public pressure builds.

The framework of prosecutorial discretion depends on prosecutors exercising that discretion while following the basic rules prosecutors are supposed to follow—neutrality, objectivity, adherence to evidence, respect for constitutional protections. When prosecutors are perceived to be making decisions based on political considerations rather than legal merit, it’s hard to assume they’re acting fairly.

What happened in Minneapolis in January 2026 illuminated that tension. Two federal agents killed two civilians within weeks of each other. The initial responses were opposite. Prosecutors charged activists while declining to look into agents. Career prosecutors resigned in protest.

The legal answer to whether prosecutors can choose which violations to pursue is yes. The practical answer is: they can try, but the system has ways of resisting when the choices look too much like politics and not enough like justice.

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