Want to sue an ICE agent? State lawmakers could make that possible

State lawmakers have introduced new legislation that would allow New Yorkers to sue federal immigration agents over violations of constitutional rights in state court. If passed, New York would join a handful of other states that have passed similar, but as of yet largely untested, laws creating a private right to action against federal officials.

State Sen. Brad Hoylman-Sigal and Assembly Member Micah Lasher have proposed what is known as a “converse-1983” statute in New York. The term refers to section 1983 of the United States Code, which permits people to sue state and local officials for violating one’s constitutional rights (and is also the origin of qualified immunity). There is no similar law at the federal level for federal officials, and federal court rulings have severely limited the ability to bring such civil lawsuits against individual officials. 

That’s where state law comes in. “What our bill would do is provide New Yorkers the opportunity to take legal action in state court when a federal officer has violated their constitutional rights, as unfortunately is happening with increasing frequency under the Trump regime, and particularly by (Immigration and Customs Enforcement),” Lasher told City & State. Any official acting “under color of any statute, ordinance, regulation, custom, or usage, of the United States” would be subject to the proposed statute.

Since President Donald Trump took office in January, ICE has increased its presence substantially in New York, and particularly in New York City, in order to carry out his mass deportation agenda. Agents have frequently detained people who arrive for immigration court hearings. And some of those immigrants as well as advocates have alleged in a lawsuit that federal officials kept them in inhumane holding facilities in the same building as the immigration courts. A federal judge in Manhattan granted a temporary restraining order in that case to improve conditions while the trial continues. 

Neither the proposed state legislation nor an accompanying bill memo explicitly names ICE, but Lasher said the agency’s actions were a driving force behind the proposal. “Unquestionably, the trampling of constitutional rights by ICE agents across the country is what is motivating our efforts here,” he said. The bill would explicitly permit noncitizens to sue federal officials, with language granting the opportunity to any “person within the jurisdiction” of the state, in addition to citizens.

Several states, including California, New Jersey, Massachusetts and Maine, have similar “converse-1983” laws on the books already, although few lawsuits have actually been brought under those statutes. That means there is little precedent on how legal action would ultimately play out and the effectiveness of these state laws. In the limited case law available, different state courts have already interpreted their versions of the laws in alternate ways. For example, judges in Maine and Massachusetts have determined that federal officials could use qualified immunity as a defense in such cases, while the California courts have said it would not apply under the state’s law. Lasher said that he believes qualified immunity would not apply under the language he has proposed.

Lawsuits brought against federal agents would also need to contend with federal laws and court precedents, with the permissibility of the laws enabling them sure to attract significant debate. Lasher said it was “likely” that a federal agent sued under his proposal would attempt to move the action into a federal court, where they would have stronger defense arguments at their disposal. “That is a question that has never been addressed – it would be a matter of first impression, as the law professors would say,” Lasher said. 

Legislators have in the past introduced at least two other bills that would create similar rights to private action, although both had a focus on lawsuits against police officers and qualified immunity in those cases, rather than on federal agents. Neither have ever passed in either chamber. 

Many lawmakers in the state have called on the governor and legislative leaders to hold a special session to address federal funding cuts and pass additional protections for New Yorkers. Lasher said that he would welcome a special session. “There is a long list of things that the Legislature should act on to respond to the Trump administration's fascistic actions and protect New Yorkers, and we should act on them as soon as the votes are there to do so,” he said.