As the Trump administration pursues its mass deportation campaign, heavily armed immigration enforcement agents have shot and killed American citizens, smashed car windows, dragged drivers from their cars, pepper-sprayed protesters, unlawfully arrested, detained and deported U.S. citizens and valid visa holders, pointed weapons at children, and damaged private property. (correct links TK)
If the alleged perpetrators were state police officers, they could expect criminal prosecutions and civil suits.
Derek Chauvin, for example, the officer who murdered George Floyd, was sentenced to more than 20 years in prison on state and federal charges, and the city of Minneapolis paid $27 million to settle a wrongful death suit filed by Floyd's family.
Holding federal agents accountable is far more difficult. Federal prosecutors have shown little interest in pursuing claims against ICE and CBP, and a web of immunities largely insulates them from state prosecutions. Civil suits also face barriers, and plaintiffs risk significant costs and possible harassment.
Nonetheless, we hope most victims will take ICE to court. Here's why.
Criminal prosecutions are the best deterrent to official lawlessness -- if prosecutors are willing to act. But when Renee Good and Alex Pretti were killed, senior administration officials blamed the victims, labeling them "domestic terrorists." The Department of Justice refused to investigate Good's killing, choosing instead to investigate her wife, which led six senior prosecutors in the Minnesota U.S. attorney's office to resign.
Although states have a long history of prosecuting federal officers, such prosecutions are often blocked by "supremacy clause immunity," a doctrine that protects individuals who act reasonably in the performance of their official duties. It's not absolute immunity, as Vice President Vance and other senior officials have asserted, but the bar is high. And both federal and state law permit the use of deadly force when officers reasonably believe someone poses an imminent threat of death or serious injury to them or to others.
Convictions are possible, however, and even though federal law allows defendants to remove cases to federal court, they remain state prosecutions. Convictions are not subject to the president's pardon power, which applies only to federal offenses. Top Trump administration officials, including Attorney General Pam Bondi, have threatened to charge state and local officials with federal crimes ranging from "obstruction" to "seditious conspiracy" if they seek to arrest federal agents.
Nonetheless, Minnesota has initiated a criminal investigation of Jonathan Ross, the ICE agent who killed Renee Good. Illinois Gov. JB Pritzker established an Accountability Commission to collect evidence that might be used to prosecute ICE officers, and New York's attorney general set up a public portal for the same purpose. Local officials in San Francisco, Philadelphia, and Boston have said they may also launch prosecutions.
Plaintiffs who want to file civil suits against ICE agents face a different set of hurdles. The Civil Rights Act of 1871 (also known as the Ku Klux Klan Act) allows individuals to sue state or local officials who violate their constitutional rights but does not authorize claims against federal officials. One hundred years later, in Bivens v. Six Unknown Named Agents, the Supreme Court found an implied constitutional right of action but, as Sen. Sheldon Whitehouse (D-R.I.) put it, recent decisions have "more or less strangled" that approach.
Democrats in Congress have proposed adding four words -- "or the United States" -- to the 1871 Act to permit suits against federal officials. Republican leaders in the House and Senate are certain to block a floor vote on the bill, but it may become a galvanizing issue ahead of the midterm elections.
That leaves suits against the United States under the Federal Tort Claims Act as the primary vehicle for individuals seeking compensation for injuries caused by federal agents. Unlike civil rights lawsuits, judges, not juries, decide liability under the Federal Tort Claims Act. Individuals cannot be named as defendants, and the process is long and cumbersome.
Under the act's discretionary function exception, the government is not liable for an agent's judgment calls. As a result, plaintiffs rarely win such cases, and when they do, monetary awards tend to be small.
Still, plaintiffs sometimes win, and the unraveling of narratives by Trump officials about recent shootings is likely to improve plaintiffs' chances. At a minimum, suits may compel disclosure of information through discovery, putting a public spotlight on the administration's aggressive tactics.
Collectively, such cases may have an impact. As one couple pursuing such claims against ICE observed, "if this is one little way that we can push back ... we should."
Media coverage of suits may add momentum to initiatives in several states to expand legal remedies for victims of ICE and Customs and Border Patrol violence. California, Maine, Massachusetts and New Jersey already have laws allowing lawsuits against federal officials for violations of state and federal constitutional rights. Illinois just adopted a comparable law, and legislators in other states are considering closing "the accountability gap" with similar legislation.
Such laws are certain to be challenged. The Department of Justice has already sued Illinois, claiming its statute is an "unconstitutional attempt to regulate federal law enforcement officers."
But saying no to immunity for federal agents who commit egregious and often unprovoked acts of violence, many of them witnessed by millions of Americans, is akin to saying no to kings. After all, as the American Immigration Council reminds us, a right without a remedy is not a right. And a nation whose residents are denied fundamental rights is not a democracy.
Glenn C. Altschuler is the Thomas and Dorothy Litwin Emeritus Professor of American Studies at Cornell University. David Wippman is emeritus president of Hamilton College.