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Tri-Valley congressman and gubernatorial candidate Eric Swalwell (D-Livermore) recently introduced a new piece of legislation alongside Rep. Dan Goldman (D-New York) that aims to strip away qualified immunity from federal immigration agents who use excessive force.
According to the “ICE OUT (Oversight of Unchecked Tactics) Act“, which Swalwell and Goldman presented to the house of representatives on Jan. 30, the bill would help ensure that victims of excessive force can hold Immigration and Customs Enforcement and Customs and Border Protection officers accountable.
“ICE is not invincible,” Swalwell said in a Jan. 30 press release. “This bill ensures that ICE agents lose qualified immunity when they use excessive force. We’re putting an end to masked federal agents dragging people by the hair, breaking into homes without cause, and killing Americans in cold blood. Civil rights laws exist; now Congress must step in to defend the rights of the most vulnerable in our communities.”
A few days after introducing this new bill, Swalwell’s office released a statement saying that he had to miss Tuesday’s first gubernatorial debate after voting against ICE funding in Congress.
“I’m missing the first debate in the governor’s race tonight because I’m in Washington, D.C. to vote against the ICE budget,” Swalwell said in the statement. “This is the most important thing I could do to fight for Californians. We cannot fund this terror in our communities. I’ll continue to play offense against ICE.”
Qualified immunity “protects a government official from lawsuits alleging that the official violated a plaintiff’s rights, only allowing suits where officials violated a ‘clearly established’ statutory or constitutional right”, according to Cornell Law School’s Legal Information Institute.
“Qualified immunity balances two important interests — the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably,” the website states.
However, according to last Friday’s press release from Swalwell’s office, given the context of what has been seen in the media recently where federal agents have shot, and in some cases, killed protesters and other civilians, qualified immunity takes away those victims’ rights to hold federal agencies accountable.
Under the current standard for qualified immunity, it is difficult to “bring ICE officers to trial and to seek justice for violations of their rights”, according to the press release.
Some recent examples are when an off-duty ICE officer shot Keith Porter Jr. on New Year’s Eve; when an ICE agent shot and killed Renee Good in Minneapolis early last month; and, more recently, when CBP agents shot and killed Alex Pretti, whose death was recently ruled to be a homicide by the Hennepin County medical examiner.
“An out-of-control, untrained, secret ICE paramilitary is beating and killing Americans all around the country without any accountability from this administration,” Goldman said in the press release. “To ensure there is some accountability, we must end the current qualified immunity standard for ICE and CBP agents. ICE agents must be held accountable when they illegally use excessive force and victims must be able to get justice. I will keep pushing Congress to do everything in its power to rein in this authoritarian immigration dragnet.”
If passed, the bill would create an enforceable guardrail around ICE conduct and it would also make it clear to agents that they can “no longer arbitrarily use excessive force without expecting to face consequences”.
More specifically, the bill would strip immunity from ICE and CBP agents during instances where courts find that excessive force was used.
“The ICE OUT Act would create clearly-defined objective language in statute that limits the circumstances in which immunity may apply for ICE and CBP agents,” the press release states. “It would also codify Bivens doctrine, guaranteeing an individual’s right to sue federal officers when their constitutional rights have been violated. By doing so, this bill will create the opportunity for the victims of excessive force to finally have their day in court.”
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