The Fine Print: Clarifying Legal Immunity in the Age of ICE

Welcome to my monthly opinion column, The Fine Print, where I dive into a law, policy, or court case and break down how it actually affects our world today, both nationally and locally. From Supreme Court rulings to Congressional legislation, I connect the dots between legal decisions and real life. As a local high school student passionate about law and current events, I’m here to make sense of the legal world, one case at a time.

In response to the stunning nationwide outrage following the death of Renee Good, a 37-year old U.S. citizen in Minneapolis, at the hands of a U.S. Immigration and Customs Enforcement (ICE) official, Vice President J.D. Vance attempted an interesting defense: “That guy is protected by absolute immunity,” he asserted, referring to the ICE agent. “He was doing his job.” If this was true, absolute immunity would completely remove liability for any action taken by an agent. In reality, while it is difficult to bring a lawsuit against an ICE official and win, it is not impossible. This is because qualified immunity, the legal doctrine that actually protects ICE agents from lawsuits alleging a violation of rights, includes the important exception of suits where the official violated a clearly established statutory or constitutional right.

Qualified immunity was first established as a “good faith” defense for police officers against civil rights lawsuits in the Supreme Court case Pierson v. Ray (1967), where SCOTUS ruled that police officers could not be held liable for violating a citizen’s rights if they acted in good faith and with probable cause. The doctrine was later adjusted in Harlow v. Fitzgerald (1982) to remove the subjective “good faith” requirement and instead use a test of whether or not the official’s conduct violated “clearly established” law, including the Constitution. Over time, qualified immunity has become a crucial common-law defense for government and law enforcement officials, meaning that it has been derived from custom and judicial precedent rather than actual legislation, like statutory law. In qualified immunity cases, a plaintiff will generally bring a suit under the Civil Rights Act of 1871 against a particular public official—not an agency or the government as a whole—who will then raise a qualified immunity defense that is difficult to overcome. Essentially, qualified immunity protects the official from all but “clear incompetence or knowing violations of the law” in the case that they acted reasonably but mistakenly, according to the Legal Information Institute.

The idea of qualified immunity isn’t without its merits; the reason it was originally established by the Supreme Court was because they feared without a liability shield, public officials and law enforcement officers would constantly be sued and second-guessed in court, which could make it difficult for them to do their jobs to the best of their abilities. On the other hand, there still needs to be some way to hold bad actors accountable, which is significantly restricted by this doctrine. When determining whether a right was “clearly established” at the time when the alleged misconduct occurred, courts consider whether a hypothetical “reasonable” official would have known that the defendant’s conduct violated the plaintiff’s rights. However, the standard of “reasonableness” is low, for fear of setting an overly restrictive precedent for law enforcement officials. Qualified immunity also means immunity from having to go through the costs of a trial at all, rather than immunity solely from punishments. This means that courts are forced to resolve these cases as early as possible, often even before discovery, when the plaintiff could otherwise gather information and evidence to aid them. As a result, the doctrine has continued to be a subject of controversy and is only more contested now, as today’s legal authorities seem to wield unprecedented and unchecked levels of power.

The recent shootings of Renee Good and Alex Pretti by ICE officials, caught on camera, alongside many other tragic deaths across the country have undoubtedly been caused by a lack of actual oversight and training, increased encouragement of the use of lethal force—once a last resort—by the federal government, and a lack of avenues through which to take legal action against ICE. It may seem obvious that Constitutional and statutory rights were violated in these instances, but because qualified immunity cases are expensive and tend to favor law enforcement officials, individuals are unlikely to have the means to take action against an ICE official that infringed upon their liberties. The Department of Homeland Security, which ICE is a part of, is meant to conduct internal investigations into potential civil rights violations, but hyper-partisan loyalty and increased corruption has made this an ineffective method. Instead, federal courts can declare ICE actions/policies unconstitutional and strike them down, Congress (which has almost absolute authority over immigration, called plenary power) can investigate ICE and pass legislation that restricts and/or defines ICE’s powers, including through restricted funding, and State Attorneys General and lawmakers can file lawsuits to challenge federal actions. Some states, like Illinois, have already begun passing laws allowing civil rights lawsuits against federal agents in state courts for constitutional violations.

As ICE presence in New Jersey persists, with several individuals in Morristown and Princeton detained earlier this year, it is imperative that we know what to do in case of an emergency. West Windsor residents can refer to the ACLU’s “Know Your Rights” guide for ICE encounters. Residents should also reach out to Congressional representatives and senators, as well as state lawmakers and local authorities, with concerns about ICE misconduct. The law as it stands is equipped to push back on abuses of power such as those we are seeing by ICE, so we must take advantage of the leeway given to us by existing legal doctrines like qualified immunity while we work towards more nuanced solutions. Congress and the courts have no excuse not to take action on our behalf, because no law enforcement official should consider themselves immune from justice.