New York bill would let residents sue ICE and CBP agents for civil rights violations

When federal immigration agents are accused of wrongdoing, existing legal recourse often falls short of holding them accountable. States across the country are now introducing legislation to fill the legal gaps. 

Among them is New York, where a bill, recently endorsed by Gov. Kathy Hochul and actively being negotiated in Albany, would enable individuals in the state to sue federal officials for violations of their constitutional rights. In practice, the bill would open up a new legal pathway for individuals to sue Immigration and Customs Enforcement (ICE), Customs and Border Patrol (CBP) or other federal agents if they believe they caused harm when acting under the marching orders of the Trump administration. 

Assemblymember Micah Lasher, a sponsor of a similar bill in the lower house, explained to Documented that he believes the legislation is necessary. 

“There is a long history of case law limiting the opportunities for people to sue federal officers in federal court,” said Lasher. “Our legislation would create a right of action in state court where those limitations would not apply.”

The legislation was introduced in September, in response to increasing incidents of federal immigration agents using deadly and violent force — a trend that has spurred at least eight other states in the past year to introduce similar bills. The idea harkens back to a section of 1871 civil rights law that allows individuals to sue federal officials for violating their rights. 

In 2026, federal immigration agents have killed at least eight people, including Renee Good and Alex Pretti amid an immigration surge in Minneapolis, with at least six of those people having died in ICE custody, underscoring the importance, for Lasher, of enacting new laws to protect New Yorkers. 

“What struck me so dramatically in Minneapolis was the extent to which ICE agents have completely created a climate of fear in that city operating with impunity,” he said. “This legislation is one of the tools we have to push back.”

Lasher said he hopes the bill will be passed as a part of the budget process in late spring this year.

“While this bill will not stop the orders coming down from Washington, our hope is that it would be a tool for accountability that would shine a light on what is happening and chill the conduct of individual agents who receive those orders,” Lasher wrote in a newsletter introducing the bill in September.

Documented reached out to the Department of Homeland Security (DHS) for comment on the legislation but did not receive a response.  

Why is it difficult to hold ICE and CBP agents accountable?

Federal agents benefit from qualified, if not de facto, immunity from state prosecution and civil lawsuits. Their level of protection under the law is no accident. 

“The trend for 30 years now has been to protect law enforcement, including the highest levels, like the director of the FBI, the attorney general, from liability,” said Lenni Benson, distinguished professor of immigration and human rights law at New York Law School. 

The history around prosecution of federal agents dates back to 1871, with a statute that permits individuals to sue state and local officials for violating their constitutional or federal civil rights while acting “under color of state law.” That section of federal civil rights law is 42 US Code 1983, known informally as “Section 1983.”   

A federal version of this right was established 100 years later. Called a Bivens claim, it is named after a landmark Supreme Court case, Bivens v. Six Unknown Named Agents. In a 1965 incident, agents from the Federal Bureau of Narcotics forced their way into the home of Brooklyn resident Webster Bivens, searched the premises, and arrested him — all without a warrant. Bivens sued the agents, arguing they had violated his Fourth Amendment protections against unreasonable search and seizure. 

The Supreme Court decided on the case in 1971, ruling that when federal officers, acting in the course of their official duties, overstep the bounds of their authority (including using excessive or unnecessary force), then individuals have the right to a remedy.  

Following the ruling, there was a short window of time from 1971 to 1980 when the Supreme Court allowed individuals to sue federal officers for violation of their constitutional rights. But that changed in the Reagan era, when the court had a conservative majority that trended towards shielding federal officials from civil liabilities. Right-leaning judges on the bench emphasized separation of powers, deciding that Congress should legislate how constitutional suits are decided against federal officials, rather than the Supreme Court. After the 9/11 attacks, the country’s highest court had another reason it cited to limit Bivens: prioritizing national security. 

“Since that time, the Supreme Court, including in many immigration cases, has really cut back on when you can ever bring a Bivens action,” Benson said. 

In fact, the Court has issued at least 10 consecutive decisions since 1980 that make it nearly impossible to bring a Bivens claim against a federal officer. Not only has the Bivens decision been narrowly interpreted for the past 40 years, but more recently a 2022 Supreme Court ruling in the case Egbert v. Boule essentially eliminated its use against federal immigration agents altogether, finding that his Fourth and First Amendment claims against a Border Patrol agent — alleging unreasonable use of force and retaliation, respectively — were not valid. 

The promise — and limits — of common tort law

Common tort law — essentially civil suits brought for charges such as assault and battery — is another possible remedy for individuals who believe they were harmed by immigration enforcement agents. But this is also a long shot. 

A law called the Westfall Act, passed by Congress to counter a 1988 Supreme Court decision that could have exposed federal employees to widespread litigation, allows the U.S. Attorney General to convert common torts against federal employees into suits against the federal government under the Federal Tort Claims Act (FTCA). In effect, the individual defendant can be removed from having personal liability altogether, if they were deemed to have been acting within the scope of their employment, and the case proceeds without them. 

Ultimately, it’s another mechanism the government can use to shield its employees from lawsuits.  

It’s not totally unheard of for an individual to bring an FTCA suit against federal immigration officers — it’s an action former Columbia student Mahmoud Khalil has taken against the Trump administration — but the accountability it can provide is limited, and on top of that it involves tricky procedural requirements that often end the suits before they even begin. 

Benson summed up the current legal landscape for holding federal agents accountable: “Have you noticed the pattern here? The case gets dismissed.”

A possible pathway to holding ICE agents accountable

Called a “converse-1983” statute (the name and idea comes from a 1987 academic article by Yale legal scholar Akhil Reed Amar) the legislation now under consideration in Albany essentially transposes Section 1983 into state law, allowing individuals to sue federal employees for violation of their constitutional rights.

That’s a legal remedy, at the moment, that New Yorkers lack. Other states, however, including California, Maine, Massachusetts and New Jersey, already have versions of a “converse-1983” statute. How it holds up in court against federal immigration agents remains to be seen. 

As a lawyer, Benson is not completely optimistic that a “converse-1983” remedy will succeed in court — but as a citizen, she believes passing it is still important. 

“It helps to educate our communities about their individual rights. It gives them an opportunity to document and bring claims in state courts,” she said. “As a matter of politics, I think it’s worth fighting for these statutes because it educates our state legislatures and our constituents.” 

Benson added that it would potentially expand the pool of attorneys, lawyers and other legal professionals who can engage in bringing cases against federal immigration agents, extending the talent outside the world of public defenders. And it might also be a nudge to Congress to draft new civil rights legislation.

On a broader scale, passing the statute would send a message. It tells the White House and Congress that federal immigration agents can be held liable for overstepping their authority — and it represents another form of state-level resistance against the federal government’s militarized enforcement tactics, its supporters say.

“This attempt by our legislature is saying, ‘this is not appropriate,’” Benson said. “We need more remedies. Law enforcement is law enforcement. They have a job to do, but when they act with impunity, when they act with violence, when they are shooting people, harming people, they have to be curbed.”

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