Lawmakers, Hochul negotiating proposal to sue federal officials

State lawmakers are actively negotiating a proposal with Gov. Kathy Hochul’s office to allow New Yorkers to sue federal agents who violate their constitutional rights – a direct response to President Donald Trump’s immigration agenda.

Assembly Member Gabriella Romero, an Albany Democrat, said lawmakers and Hochul’s staff are on the same page as they discuss the policy – including concerns from lawmakers and criminal justice groups that the policy must not mention qualified immunity, which protects state or federal officials in civil lawsuits. The governor’s current bill would allow defendants to assert qualified immunity as defense.

“I’ve been on phone with the governor’s staff every single day – we are there with the governor,” Romero said of ongoing negotiations. “The governor is working with us and our version of the bill we want.”

Hochul modeled her proposal after a bill Romero and state Sen. Zellnor Myrie introduced last fall known as the New York Civil Rights Act. Their legislation allows New Yorkers to equally file civil lawsuits against state, local or federal agents, like U.S. Immigration & Customs Enforcement officers, in state court for violating their civil rights.

Current state law only allows such lawsuits to be filed in federal court, which is largely inaccessible to the public.

The policy is expected to be subject to intense litigation for months, and potentially years, after it becomes law.

With that in mind, Myrie and Romero agreed this week to amend their legislation – removing language that some argued could have codified qualified immunity and encouraged the defense to use it as an argument, making it more likely New Yorkers would lose their lawsuit.

“Our rights have little meaning without a serious mechanism to enforce them,” Myrie said in a statement. “Along with other measures to safeguard New Yorkers under threat, the New York Civil Rights Act will ensure that we have a meaningful pathway to protect ourselves from unconstitutional searches, warrantless arrests, and violent crackdowns on free speech and lawful protest. My colleagues and I are laser-focused on building the strongest protections possible to defend us and the rights guaranteed to us by the U.S. Constitution."

They also removed language that would have allowed the state attorney general to bring a civil action on behalf of someone harmed by a civil rights violation. Romero said the change was made to make it easier, and faster, for people to achieve justice because of existing precedent in other states.

Romero said Hochul’s staff are on the same page with lawmakers who drafted the bill and conversations are ongoing. The Assembly member said the changes will strengthen the policy’s constitutional protections ahead of anticipated legal challenges, adding the law must equally target state, local and federal officials – not just federal.

“We knew our previous version was fine, but this is just being super safe,” Romero said, later adding: “When we first created the law, we did it in good faith. But the reality is, it is a scary jump to put (qualified immunity) in state law for the first time.”

Several city and state electeds and criminal justice organizations are putting the pressure on Hochul to amend her proposal in a similar way. More than 60 officials and organizations have signed onto a letter urging Hochul to amend the proposal and remove language that would codify qualified immunity. The letter was sent to Hochul on Wednesday night.

Assembly Member Pam Hunter, a Syracuse Democrat who signed the letter, said state leaders must create a clear cause of action that will allow New Yorkers to hold federal officers accountable when their constitutional rights are violated, but it cannot codify qualified immunity in state law.

“Accountability is essential to rebuilding trust in our institutions,” Hunter said. “However, the final budget must not codify qualified immunity in statute as it is antithetical to true accountability. This doctrine has developed through decades of judicial interpretation, not enacted law, and remains deeply contested. We can advance accountability without freezing into law a legal standard that has too often denied access to justice in the face of clear violations of our basic civil rights.”

It’s unclear how soon Hochul will reach a deal with the Legislature. The immigration bills could be negotiated and passed before the state budget deadline of April 1.

"Gov. Hochul has been clear: Federal officers who violate someone's constitutional rights must be held to the same legal standards that already exist for state and local officers under federal civil rights law,” Hochul’s spokesperson Jess D'Amelia said in a statement. “The governor continues to work closely with the state legislature to protect New Yorkers' constitutional rights, and discussions are ongoing.”