By Jan Wolfe
WASHINGTON, Jan 28 (Reuters) – Several Democratic-led states are pursuing laws trying to enable people to sue federal agents deployed to their communities for civil rights abuses, a push that has gained steam amid protests over tactics used by ICE during U.S. President Donald Trump’s immigration crackdown in Minneapolis and elsewhere.
Illinois last month became the first state to pass such a law. Trump’s administration swiftly filed a lawsuit seeking to block it, arguing that allowing civil rights lawsuits against U.S. Immigration and Customs Enforcement agents in state courts violates a key provision of the U.S. Constitution.
Democratic-backed legislation that would allow civil rights claims against ICE agents in state courts also is being considered in states including California, New York, Virginia, Maryland and Connecticut. The killings of two people – Renee Good and Alex Pretti – by ICE agents in Minneapolis this month and rough tactics used by the agency during deployments have brought new attention to these efforts, still in the early stages of the legislative process.
‘HOLD ICE AGENTS ACCOUNTABLE’
New York Governor Kathy Hochul, a Democrat, said during a January 13 speech that she will “move to allow New Yorkers to hold ICE agents accountable in court when they act outside the scope of their duties.”
ICE is part of the U.S. Department of Homeland Security, or DHS. Tricia McLaughlin, a DHS spokesperson, said in a statement to Reuters that Hochul “continues to smear law enforcement who are simply enforcing the rule of law and are putting their lives on the line.”
“DHS law enforcement officers follow the law and the U.S. Constitution,” McLaughlin added.
The state measures could pave the way for a wave of lawsuits by U.S. citizens and non-citizens alike seeking monetary damages from individual law enforcement officers accused of violating constitutional rights such as freedom of speech, due process and the prohibition against unreasonable searches and seizures. The measures are intended to address what their supporters call an accountability gap in the U.S. legal system.
In 1871, the U.S. Congress passed a law that lets people bring civil rights lawsuits in federal courts against state and local government officials including police officers. This law, called Section 1983, has been a tool for addressing misconduct by police officers at the state and local levels.
But Congress has never passed a similar law allowing for such lawsuits in federal courts against individual federal agents, like ICE officers, accused of violating constitutional rights, with Democratic proposals stymied by Republican opposition.
One existing law, called the Federal Tort Claims Act of 1946, allows people to seek compensation from the U.S. government for negligent and wrongful acts by federal employees, though it does not allow these employees to be named as individual defendants in lawsuits.
A law firm representing Good’s family said it is investigating whether to pursue legal action through the Federal Tort Claims Act but said that statute requires plaintiffs to deal with “byzantine, time-consuming processes.”
Anya Bidwell, an Arlington, Virginia-based lawyer who brings civil rights claims on behalf of clients against law enforcement, called the proposed state measures that would allow for suits against federal agents in state courts “a potential sea change” in the American legal system. One of her clients is a California man – a U.S. citizen and Army veteran – who has said he was brutalized by ICE agents during an immigration raid.
‘SUPREMACY CLAUSE’
The Illinois law allows civil lawsuits in state courts against federal agents who knowingly violate constitutional rights while enforcing U.S. immigration law. Under that law, plaintiffs who allege they have been unlawfully searched or detained by ICE agents could sue them in state court and seek monetary compensation, including punitive damages.
The U.S. Justice Department filed a lawsuit seeking to block the Illinois law, and has signaled it would challenge any similar state measure passed this year. It said the Illinois law violates a constitutional provision called the “Supremacy Clause” that makes federal laws supersede conflicting state laws.
McLaughlin described threats she said have been made against DHS personnel, and said that despite these “our law enforcement show incredible restraint and professionalism in exhausting all options before any kind of non-lethal force is used.”
In a recent essay, two constitutional law scholars called the Illinois law an “innovative” but “imperfect” law. Vikram Amar of the University of California, Davis and Jason Mazzone of the University of Illinois at Urbana-Champaign said some parts of it, such as the provision dealing with punitive damages, are likely unconstitutional on Supremacy Clause and other grounds.
But Amar and Mazzone and some other legal experts support the core premise of the Illinois law and similar proposals under which states would create civil liability for federal agents who violate the Constitution.
“The Supremacy Clause only prevents states from imposing new legal obligations and restrictions on federal officers,” said Lauren Bonds, director of the Redmond, Washington-based National Police Accountability Project advocacy group.
The Trump administration’s lawsuit targeting the Illinois law eventually could reach the U.S. Supreme Court, Bidwell said.
The California legislation, called the No Kings Act in a nod to the anti-Trump protest movement of that name, was approved by a state Senate committee in an 11-2 vote this month. It has not yet been taken up by the full state Senate. It also would need approval by the state Assembly and Democratic Governor Gavin Newsom’s signature.
The fact that the California proposal is modeled after Section 1983, a federal law already on the books, makes it more likely to withstand a legal challenge, Bidwell said.
“The courts would not need to reinvent the wheel,” Bidwell said.
(Reporting by Jan Wolfe; Editing by Will Dunham and Noeleen Walder)
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