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How Democrats Can End Qualified Immunity for ICE Agents

By
David Sirota

Democrats have a rare moment of leverage to pass legislation ending qualified immunity for Immigration and Customs Enforcement agents, dismantling a legal shield that has allowed them to evade accountability for murder.

Democrats have an opportunity to end ICE agents' qualified immunity from wrongful death lawsuits. (Scott Olson / Getty Images)

Senate Democrats are right now formulating a list of conditions they say must be fulfilled for them to consider providing votes for more funding to Immigration and Customs Enforcement (ICE). One of those items could be Democratic legislation that is already written and introduced in Congress: a bill to end qualified immunity for ICE agents, so that communities can hold those agents legally accountable when they murder people.

Days after ICE killed Renee Good, the Department of Homeland Security (DHS) tweeted out Donald Trump adviser Stephen Miller on Fox News declaring, “To all ICE officers: You have federal immunity in the conduct of your duties.”

DHS and Miller were referring to qualified immunity, which the National Lawyers Guild notes “is a legal doctrine created by the U.S. Supreme Court that protects public officials, including police officers, immigration officers, and immigration detention center staff from civil liability for constitutional and statutory violations.”

In its story about whether the families of those murdered by ICE can sue federal agents, Reuters points out that under existing legal doctrines, “federal officers are immune from civil lawsuits unless their conduct clearly violated a clearly established constitutional right. This legal standard, known as qualified immunity, has become a highly effective tool for shielding police officers accused of using excessive force.”

But simple, two-page legislation introduced in Congress would change that. This bill has been just sitting there in the US House for months. To be sure, it wouldn’t fix everything. But it could start fixing the specific problem of ICE agents having qualified immunity from wrongful death lawsuits and other such civil cases whose threat of monetary damages are supposed to create a deterrent to bad behavior.

After the killing of Good, some senators and House members who have long criticized qualified immunity for law enforcement have thankfully resurfaced the idea in the debate over ICE — and now they appear to have leverage to actually do something. Indeed, because of the budget standoff, Senate Democrats have power right now. You don’t have to believe me, believe Sen. Ed Markey (D-MA) — a supporter of ending qualified immunity for ICE — who said: “We have the power to end this.”

If Democrats aren’t going to use that power to try to fully shut down ICE (which they should), at the absolute minimum they could use that leverage to condition any votes for any DHS funding on the passage of simple legislation ending qualified immunity for ICE agents.