Sue, Limit, Leverage: California's Playbook to Combating ICE - LAmag

A sense of helplessness has gripped Californians concerned about Immigration and Customs Enforcement activity as ICE agents continue to roam the streets of California’s largest cities, arresting illegal immigrants and U.S. citizens alike.

As the number of ICE raids in the state has risen, so too has the death toll.

In July, a Central Valley farmworker fell from a greenhouse roof during a chaotic ICE raid, marking the first death under Trump’s immigration enforcement operations. In August, a man was hit by a car and killed on the freeway while attempting to flee ICE, while more recently, an off-duty ICE agent shot and killed 43-year-old Keith Porter in Northridge on New Year’s Eve.

There is a palpable sense of frustration over lawmakers’ inaction in response to ICE, but what options are available to push back against federal immigration deployment?

Even with the federal government’s broad authority over immigration enforcement, there are some legal avenues for the state to pursue that fall into three distinct categories: sue, limit and leverage.

Sue

Generally, states lack the authority to sue federal officials, such as ICE agents, due to the broad protections of the Constitution’s Supremacy Clause, even though the federal government can bring lawsuits against state and local officials.

However, many legal scholars have floated a theory, known as “Converse 1983”, which would be a legal workaround.

In conjunction with a proposed state law making its way through the California legislature, the state’s attorney general could authorize private citizens to sue ICE agents for civil rights violations, potentially forcing the federal government to make seven-figure payouts if it loses in court.

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The legislation would close the legal loophole that shields federal officials from state-sanctioned accountability for civil rights infringements, even as state and local officials are subject to federal oversight.

The primary obstacle to this approach is the Supremacy Clause, which bars states from enforcing legislation that conflicts with federal law.

“You can imagine how complicated it would be if states were allowed to interfere with federal law enforcement,” John Preis, law professor at the University of Richmond, who frequently represents victims of government abuse, said.

Invoking the Supremacy Clause, the Trump administration has said that lawsuits against federal agents are “a policy choice for Congress,” not states’ elected officials, complicating the path to accountability.

If Converse 1983 lawsuits are deemed unconstitutional, California could instead steer victims to file federal tort claims, which are well tested in court.

Under the Federal Tort Claims Act, individuals who suffer injuries due to the “wrongful or negligent” acts of a federal employee can sue the federal government.

Notably, tort lawsuits can be foiled by what’s known as the “discretionary-function exception,” which generally protects federal officers if they make mistakes while performing their official duties. But courts have often ruled that this exception is void if victims can prove that federal agents’ actions were unconstitutional, such as in cases of excessive force.

Another feature of tort claims is that cases are typically decided by a judge rather than a jury. As a result, victims cannot appeal to a jury’s emotions, typically reducing both the size of payouts and the likelihood of a victim’s success.

Notably, both tort and Converse 1983 lawsuits would only yield monetary awards, rather than impose court-ordered reforms on ICE and its agents.

Still, Preis stressed that a judge’s order is not the only way to bring about change.

“If an agent keeps costing the federal government millions of dollars, they don’t just keep going on forever, they get fired,” Preis said.

Limit

While California cannot block federal immigration enforcement, it can limit officers’ ability to carry out their duties in the state.

Under the state’s landmark sanctuary law, state and local officials are prohibited from cooperating with federal immigration agents, including sharing residents’ immigration status, jail release dates and surveillance data, such as license plate reader information.

If officers refuse to comply, the state can take the aggressive measure of suspending or revoking officers’ licenses, sending a clear message to departments across the state.

“Decertification already exists. The question is whether policymakers are willing to say that violating sanctuary laws is serious enough to warrant it,” Lars Trautman, legislative director at the New York University School of Law’s Policing Project, said.

State legislatures can also try to pass laws banning controversial conduct routinely employed by ICE agents. However, just as with Converse 1983, efforts to restrict federal agents risk running afoul of the Supremacy Clause.

In September, California Gov. Gavin Newsom signed a package of bills restricting federal immigration agents’ ability to conceal their identities with face masks, requiring them to display identification and barring entry into schools and hospitals without a judicial warrant.

Last month, a federal judge blocked one of the laws Newsom signed, banning federal agents from wearing masks, finding that the bill violated the Supremacy Clause by imposing requirements on federal officers while excluding state and local law enforcement.

The California Legislature is seeking to rewrite the law to include restrictions on state and local officers, in hopes of making it enforceable.

“Some of the state’s more effective measures have focused on limiting the spaces where ICE can operate,” Lynn Damiano Pearson, director of legal strategy for the National Immigration Law Center, said.

Leverage

Even if California cannot curtail ICE activity, the state could leverage its broad discretion over public sector hiring to penalize former immigration agents.

In January, the California legislature introduced Assembly Bill AB 1627, which would bar ICE employees hired by the Trump administration from working in state law enforcement or public education.

The policy, authored by East Bay Area representative Anamarie Avila Farias, also extends to employees of the Alabama and Georgia Departments of Corrections hired between 2020 and 2026. The two departments partner with ICE to train corrections officers in performing targeted immigration functions, including identifying, processing and facilitating the deportation of jailed immigrants.

With the exception of military service members and veterans, neither federal law nor the state’s constitution prohibits California from making hiring decisions based on prior employment it deems unacceptable.

Still, the state would have to prove to a judge that there is a “rational basis” for refusing to hire all ICE employees, rather than using more targeted measures, such as conducting thorough background checks focused on surfacing excessive force complaints.

“It becomes a question of how many ‘true crazies’ there are and how horrible they are,” Preis said. “If you’re protecting against a small number of people but harming a large number, that’s where courts start to push back.”

“It’s all about federalism.”

Courts will continue to decide how far California can push its state authority in cases scheduled for the coming months.

For now, however, California’s options are limited. Since the state cannot stop immigration enforcement outright, it must rely on a mix of untested and uncertain strategies to delay, limit and penalize federal immigration agents.

“What states have done is very carefully looked at what the limits of their activities are given our federal system, and have creatively worked around that,” Chisti Muzaffar, senior fellow at the non-partisan Migration Policy Institute, said.

“This is all about federalism. States are looking at all kinds of options and testing the limits of how much power they have.”