Since the recent killings of Renee Good and Alex Pretti at the hands of federal immigration agents in Minneapolis and the footage of ICE agents clashing with protesters and residents alike, some are asking the question: Why is it so hard to sue ICE officers for abuse?
The answer goes back to 1871 America. The Show spoke more about it with The Marshall Project’s Cary Aspinwall.
Full conversation
CARY ASPINWALL: The laws that govern this go back to post-Civil War reconstruction. The years following the Civil War in the South, they were trying to enforce voting rights and civil rights of Black people that had not been previously allowed to have those rights.
And there was pushback to that in the form of the Ku Klux Klan. So the Ku Klux Klan was terrorizing Black people in the southern states. And there were reports of murders, beatings and rapes. And even when a local official in South Carolina, Alabama, those states, tried to hold people accountable and get a grand jury together to bring somebody to justice, they often couldn't because they couldn't get even a grand jury together to do it or they wouldn't indict because a lot of the people happened to be Klan members and a lot of the local officials were the people who were brave enough to step up and do the right thing were also being terrorized.
So Congress had a bunch of hearings about it and had people testify. In response to the information that they got from these hearings, they passed a series of laws, but the one we're talking about today, people refer to it as the Ku Klux Klan Act.
It imbued the right to sue in the federal courts, state and local officials, because obviously that's what they were worried about at the time. You had state and local officials who weren't protecting your federal civil rights, so you could take them to federal court and sue them. But they weren't thinking about it in the context of somebody suing the federal government for these rights.
LAUREN GILGER: Right, OK. So they weren't thinking about it, but this is something that's been defended by both Democratic and Republican administration since then, this exemption for federal officers. Why? What's the argument?
ASPINWALL: Well, right, because Congress passed this law, so who could change it? Congress, right? They could add federal in there, but they've chosen not to. I think there's a lot of pushback. They'd face a lot of pushback about it.
I mean, as it is under the law, you know, we call them like the section of U.S. code is 1983. So we call them like 1983 civil rights lawsuits in the court parlance.
And it's really hard even with that law to prevail in one of those lawsuits when you're suing state and local officials. There's been a number of Supreme Court rulings in the past several decades that have made it even harder. So it's pretty rare for somebody to win one of those lawsuits anyway.
And I think there's intense pushback from federal law enforcement agencies, from the congressmen themselves, there just hasn't been any traction. The political willpower hasn't existed. And it's been Democrats and Republicans on both sides who fought it.
GILGER: Let's back up for a quick second, Cary, and have you describe for us a little bit about how this so-called Ku Klux Klan law has worked. Like you mentioned, it's tough to be successful in these cases, but there have been some very notable cases that have been successful, right?
ASPINWALL: Yeah. So when we talk about these civil rights lawsuits, think about it like in the deaths of Elijah McClain or George Floyd, and they file a civil rights lawsuit in federal court against the officers. So those are state and local employees. And so they're getting sued in federal court for violating that person's federal civil rights.
And those were big verdicts, but those are rare. That's not that common. And I think, those ones, you had such overwhelming pressure and evidence.
And, in fact, what happens in a lot of these cases and what we've seen in Minneapolis is sometimes it's hard to even get the names of the officers involved at first, especially if they're not handing over the body camera footage, if they're not giving you the badge numbers. So it can take, you know, five, 10, eight years to even get those lawsuit victories or to get them into court.
GILGER: So now this law and this whole conversation is coming up again because of what we're seeing with federal immigration agents in Minneapolis in particular, the deaths of two U.S. citizens there, Renee Good and Alex Pretti.
I mean, scenes of aggressive arrests, encounters with Border Patrol, with ICE agents are kind of everywhere right now. And lots of folks saying, you know, how do folks hold them accountable? This is not an option for them. What are the options?
ASPINWALL: Well, a lot of states are going to try and take it into their own hands. You know, Illinois passed a law last year because of the immigration raids that have been happening there that would allow people to sue federal officers in their state courts for violations of civil rights while conducting immigration enforcement. Now, the Trump administration has sued to nullify this, so we'll see what happens.
But there are other states that are talking about it. Colorado, where Elijah McClain was killed, they did actually pass some laws in response to his death to allow people to sue in state court and nullify qualified immunity, which is the legal hurdle that people have to overcome.
It basically states that government agents can't be held responsible for everything that happens in the line of duty, only for like most egregious violations, is kind of the simplest way I can sum that up.
GILGER: We're seeing some calls for change, too, to this law, to this exemption for federal agents. Is there going to be, or do you think there is any political will to make that happen at this moment?
ASPINWALL: You know, there's a lot of people talking about it. Whether they can get their votes with the current makeup of Congress, that seems doubtful to me and to the experts I've spoken to. But, you know, anything can happen. Laws can change. This law changed back in 1871.
They could add an exemption into it. I know there's some momentum for that. There are some lawsuits thought to challenge it. It's not that it's never been challenged before. There have been a number of cases where people tried to sue federal officers under the law. They've just been denied because they said, Congress didn't include federal officers under this law.
There's like a narrow exemption. It's called the Bivens case, where a guy had these undercover officers violate his rights with a warrant that they served on him and searched his property. But the problem is, they gave a ruling in that case to allow Mr. Bivens to sue.
And it's only happened like maybe three other times since then. And every other time, when it comes before the court and the federal courts, like the Supreme Court, the appeals court, they bat it down and say, nope, it doesn't apply to federal agents.
GILGER: So let me ask you lastly, I mean, one of the things we're seeing here in Arizona is certain leaders in some of the more liberal counties, we're seeing this happen in Pima County, where Tucson is, they are looking at a series of resolutions, ordinances that would try to at least restrict the way that ICE functions, like, you know, make them within county lines, not wear masks, things like that.
Have we ever seen anything like that before? Is that kind of thing going to hold muster in a court of law?
ASPINWALL: We haven't really seen it be tested yet because a lot of these state laws are new. So I think we will probably see people try to test it. The interesting thing about it is that if you look at prior Supreme Court rulings, like say the one related to abortion, the one that has made it possible for states to outlaw abortion. The central argument in that case was that, well, states have a right to make whatever limits in their laws. They want to protect human life and property. You know, that's a very simplified version of it, but that's kind of what they said there.
That's the current Supreme Court. So it would be hard for them to go back in theory and say, well, states can't make these laws now with regard to people's civil rights. So I don't think anybody's entirely sure what's going to happen. And it might be one of those things where, you get a different outcome in one state or one court district versus another. And I think we're going to see a lot of legal challenges about this.
-
The Respect for Local Communities Act would require public comment and written approval from state and local officials where ICE facilities are planned. Congressional committees would also have to be notified. -
In a district with more than 80% nonwhite students, the community is calling for a more rigorous effort to protect schools from potential immigration enforcement activity. -
A bill advancing in the Arizona Legislature would direct local police to determine the immigration status of people they’ve arrested. If a person is undocumented, local police would be required to notify federal immigration officers. -
Almost two dozen rights organizations from the U.S. and elsewhere presented to the Inter-American Commission on Human Rights this week in Guatemala City during a hearing about so-called third country deportations — which are done through deals the U.S. has made with almost 30 different countries. -
The federal government has awarded a contract worth up to $700 million to a controversial security contractor that staffs Florida’s “Alligator Alcatraz” to operate a planned immigration detention facility in Surprise.
