When ICE Agents Break the Law, Can Victims Sue? The Supreme Court Hints Yes. Will the Eleventh Circuit Listen

Over the past five months, Immigration and Customs Enforcement ("ICE") agents have arrested and deported U.S. citizens, caused car crashes during reckless pursuits, brandished weapons on unarmed children, and unnecessarily used force against elected officials. These are just a few of the egregious acts that federal law enforcement officers have committed since the Trump administration has ramped up its smash and grab deportation tactics. As an increasing number of people are injured by ICE and other federal law enforcement agents, clarity around pathways to accountability is more important than ever. Unfortunately, the U.S. Supreme Court opted to gently nudge-rather than clearly direct-the Eleventh Circuit to join the rest of the country in allowing victims of federal police abuse to sue when they are injured.

This term, the Court issued an opinion in Martin v. United States, a case filed by a family that was terrorized by a Federal Bureau of Investigations (FBI) SWAT team during a wrong house raid. The Court's main holding was relatively uncontroversial: reversing the Eleventh Circuit's outlier position that the supremacy clause shields the federal government from suit when its law enforcement officers violate state laws. However, the Court sent back to the Eleventh Circuit for "careful reexamination" what should have been an equally clear issue-whether the Federal Tort Claims Act's ("FTCA") discretionary function exception prohibits lawsuits for officer conduct that is not directly prescribed by federal law or policy. How the courts ultimately define the scope of the FTCA's discretionary function exception could determine whether ICE agents face any consequences for their increasingly unhinged and illegal actions.

On its face, the FTCA is a hyper-technical statute that governs a relatively small number of the nation's cops. However, the FTCA will be the primary vehicle to seek justice in court for people harmed by the Trump administration's mass deportation agenda. The statute provides one of the only methods for a person injured by federal officers to sue for damages. Accordingly, the FTCA will be the litigation vehicle for people injured by ICE as well as the federal militarized response to protests opposing immigration raids.

The FTCA doesn't allow lawsuits for all federal officer misconduct and contains several exceptions-most notably, the discretionary function exception. In a nutshell, the discretionary function exception shields officers from FTCA lawsuits when they are engaged in conduct for which they are exercising discretion. In the past, the Eleventh Circuit has endorsed a uniquely expansive reading of the exception, holding that any actions not specifically addressed in a federal statute, policy, or regulation are discretionary and an officer cannot be sued for them. Law enforcement officers rarely receive written bright line rules outlining every permissible or prohibited action. Federal law enforcement policies are no different. Under the Eleventh Circuit's uncorrected standard, ICE agents and other federal officers could dodge accountability for a broad range of reprehensible, dangerous, and illegal actions simply because a victim couldn't cite a specific statute, policy, or regulation banning their actions.

For instance, Leonardo Garcia Venegas, the U.S. citizen that was violently arrested in Alabama because ICE agents thought his REAL ID was fake, would need to point to a formal policy, statute, or regulation to bring a case under the Eleventh Circuit's rule. While some of the agents' actions might be prescribed, it is unlikely that all the illegal conduct that occurred during Mr. Garcia Venegas's hours long detention would be explicitly regulated.

Negligent conduct may be even harder to challenge in court if the Eleventh Circuit declines to reconsider its position. As Justice Sotomayor noted in her concurrence, under the Eleventh Circuit's standard, a person could only sue a federal officer that severely injured them in a car accident "if federal law or policy specifically prescribed an officer's permissible maneuvers on the road." This scenario is not just a hypothetical concern. Just last month, an ICE agent caused a major car crash while fleeing a failed raid attempt at a school in New York. In Texas, immigration-related vehicle pursuits have led to hundreds of deaths.

Given the Court's increasing hostility to federal law enforcement accountability, the Martin majority opinion's gentle suggestion to "think again" is a relative success story. While the Supreme Court did not directly overturn the Eleventh Circuit's misreading of the discretionary function exception, its subtle directive to "carefully reexamine" the exception's application may prompt the Eleventh Circuit to join the rest of the country in permitting lawsuits in cases even when there is no specific federal policy addressing the conduct in question.

But at a time when ICE and other federal law enforcement agents are violating people's rights at unprecedented rates, it is disappointing for victims and their advocates in Alabama, Florida, and Georgia to have to wait and see what the Eleventh Circuit will do. It is hard to overstate the importance of the FTCA and the scope of its protections for the millions of people living in the Eleventh Circuit. Florida currently leads the country in ICE cooperation and is one of the states where federal military troops have been deployed to assist with ICE raids. Alabama and Georgia have also increased their participation in federal immigration enforcement. As a result, abhorrent abuses are already happening, and more are inevitable.

Given all that is at stake and the clear legal precedent at issue, it would have been nice for the Court to have fixed the misinterpretation. Hopefully the Eleventh Circuit will be able to take the hint.

Deportation, Detention and Access to Justice, Immigration, Rights of Detainees