Federal agents are usually immune from lawsuits in ways local and state officials aren't, but the Trump administration's immigration policies are prompting states to test the gap with novel strategies to hold them accountable.
Why it matters: The Trump administration has suggested federal agents possess "absolute immunity" from state-led prosecutions, which sparked outrage following the deaths of two Minneapolis residents.
- "For most of American history, there were already paths to suing federal officials," Harrison Stark, of the State Democracy Research Initiative at the University of Wisconsin Law School, tells Axios, particularly torts that compensate for constitutional violations.
- Plus, a 1971 Supreme Court decision expanded individuals' ability to sue federal agents, but the court has sharply scaled that pathway back in recent years. Instead, the court has suggested that Congress should be the body to create new remedies, although it has not done so.
- "The result is that you have federal agents who are behaving as if they know it is extremely unlikely that they will face any penalty for violating constitutional rights," Stark said.
Between the lines: Legal precedent may favor the federal government.
- The Constitution's supremacy clause generally limits states from enacting policies that conflict with federal law, and law enforcement groups often oppose any attempts to curb their authority.
What they're saying: A DOJ spokesperson told Axios: "Instead of vilifying federal law enforcement when attacks on ICE have surged 1,300%, these radical governors should reverse their state's sanctuary policies and protect their constituents from being brazenly raped, murdered, or set on fire by violent criminals in our country illegally."
- "This Department of Justice is focused on law and order and public safety, and Americans deserve leadership focused on supporting them, not spewing divisive rhetoric that undermines those sworn to keep them safe."
Yes, but: Some legal scholars argue that states have a duty to safeguard constitutionally guaranteed rights when federal laws are insufficient, a principle they trace to the Founding Fathers' era.
- "If you're skeptical of states going after ICE agents in particular, ... there's a really strong originalist case that states have this power," Stark tells Axios.
Here's how states are responding:
Illinois
The Illinois Bivens Act allows people to sue federal agents for civil rights violations while interacting with Illinois courts, hospitals, schools, and child-care centers during civil immigration enforcement activities.
- The law preserves qualified immunity, shielding officers from lawsuits if they act within the law. The Trump administration is suing Illinois over the policy.
California
The California Senate passed the No Kings Act at the end of January, which would allow people to sue federal officers for constitutional violations.
- It's being touted as a "first-in-the-nation" policy, and it needs to pass the state General Assembly to become law.
The bill has inspired nearly identical legislation in multiple states, including Maryland, Colorado, and Rhode Island.
Minnesota
After Operation Metro Surge deployed thousands of federal agents to the Twin Cities, some lawmakers plan to introduce legislation allowing Minnesotans to sue for "civil and monetary damages" over constitutional violations.
- "The proposal is simple: Minnesotans injured by unconstitutional acts should be able to seek a remedy from an independent and impartial court," members wrote in an op-ed announcing their intentions.
Local authorities
A coalition of progressive prosecutors founded the group Fight Against Federal Overreach (FAFO) to hold federal agents accountable when they exceed their authority.
- "No agency and no officer is above the law," Philadelphia District Attorney Larry Krasner said in a press release.
What we're watching: Efforts to rein in federal agents are spreading, setting up potential legal battles that could test the limits of state authority.
Go deeper: Why federal agents face less accountability than local police - Axios Seattle
Editor's note: This story has been corrected to reflect that in 1971 the Supreme Court expanded (it did not restrict) people's ability to sue federal agents.
