NY Dems propose letting citizens sue ICE following Kavanaugh 4th Amendment opinion

ALBANY, N.Y. (NEXSTAR) — Democratic legislators are pursuing new state laws to let New Yorkers sue government officials who violate their constitutional rights. This comes in response to a September 8 U.S. Supreme Court ruling on the ability of federal agents to enforce immigration law.

The bills could create a new legal pathway to seek justice in New York state courts, which the bills’ sponsors call necessary in light of SCOTUS actions to counter longstanding federal precedents and protections. Any official—federal, state, or local—who violates a suspect’s rights or freedoms while acting in their official role could be held accountable under the proposals.

The push follows the decision in “Noem v. Vasquez Perdomo” permitting federal agents from Immigration and Customs Enforcement to resume investigative detentions in Los Angeles. The ruling temporarily lifted a lower court order that had previously limited how ICE targets people.

The lower court had found a “mountain of evidence” that the agency or its officers were violating the Constitution. Ultimately, it told agents that they had to consider more than just a suspect’s race, ethnicity, language, or work history when planning stops or arrests. But in a partisan six to three decision, the conservative SCOTUS majority—including Justice Brett Kavanaugh—undid that requirement.

In a concurring opinion, Kavanaugh added that the Fourth Amendment bans federal agents from using excessive force, and that “remedies should be available in federal court” if they do. He said that in an area like Los Angeles, featuring lots of undocumented immigrants, several factors can establish “at least reasonable suspicion” for a stop. Kavanaugh also wrote, “to the extent that excessive force has been used, the Fourth Amendment prohibits such action[.]”

But Kavanaugh and other justices have already restricted how someone can succeed when suing federal agents over constitutional violations like the use of excessive force. The 1971 case “Bivens v. Six Unknown Named Agents” allowed lawsuits against federal officers for monetary damages under a Fourth Amendment violation, which is supposed to prevent unreasonable searches and seizures. But SCOTUS has limited this precedent to only three cases over the years, repeatedly declining to cover new contexts, so victims of constitutional violations find it difficult to pursue a legal remedy.

And the Federal Tort Claims Act is supposed to allow civil action against a government employee for a constitutional violation, too. Still, in 2002’s “Egbert v. Boule,” a U.S. citizen who sued a Border Patrol agent over excessive force on American soil. SCOTUS decided they lacked standing under Bivens.

Trying to close that gap, state Democrats introduced the new bills days after the SCOTUS decision. On September 10, State Senator Zellnor Myrie and Assemblymember Gabriella Romero introduced the New York Civil Rights Act, S8500/A9076. The law’s text explains that it is designed to “restore a meaningful avenue of accountability consistent with federal supremacy, state sovereignty, and the longstanding principle that rights must be paired with remedies.”

The bill lets state courts issue injunctions in such cases. That means they’d be able to order a government agency or official to stop performing certain actions or behaving in particular ways, depending on the specifics of the case—like, for example, targeting New Yorkers for immigration enforcement based on their use of a language besides English.

In a press release about the New York Civil Rights Act legislation, State Senate Deputy Leader Michael Gianaris said, “We cannot leave New Yorkers defenseless to the Trump administration’s relentless assault on Americans’ civil rights.”

Two days later, State Senator Brad Hoylman-Sigal and Assemblymember Micah Lasher introduced a similar bill, S8504/A9092. It would create a private right to sue federal officials who deprive New Yorkers of their constitutional rights.

The new bills build on a past proposals introduced earlier in the year. For example, State Senator Robert Jackson and Assemblymember Pamela Hunter sponsored S176/A1402 in January, making government agencies pay for any judgments against an employee or for their legal liabilities under that law.

It targets qualified immunity, the shield protecting law enforcement and public officials from lawsuits “when they deprive the rights of New Yorkers.” The legal principle prevents civil lawsuits against those federal officials, officers, or agents unless their conduct violates a clearly established law or constitutional right that any reasonably well-trained officer would know. This defense makes it hard for a plaintiff to even bring a case against the feds, let alone win it.

If passed, the laws would offer state court options that aren’t available federally, allowing compensatory damages, punitive damages, or attorney’s fees. Both the older S176/A1402 and the more recent New York Civil Rights Act also let the New York Attorney General sue on behalf of someone whose rights were violated.

The SCOTUS decision is available below, including Justice Sonia Sotomayor’s dissent. She wrote that the lower court had found that “a very large category of presumably innocent” people were impacted. “We should not have to live in a country where the Government can seize anyone who looks Latino, speaks Spanish, and appears to work a low wage job,” she wrote.

She also pointed out that SCOTUS lifting the injunction failed to a address that use of force issue, noting that agents jumped out of cars to chase and tackle alleged targets. Sotomayor said that the SCOTUS argument improperly shifts the burden of proof away from the government and onto citizens who are supposed to have the right to due process.

Sotomayor called the majority decision a “grave misuse of our emergency docket.” Here’s the decision: