Instructions for Resistance
ICE and the cops who help them are not immune.
Last April I was asked to give the keynote speech at the Hillsborough County (NH) Dems dinner about what we could do in response to Trump’s blitzkrieg of executive orders that were tearing the nation apart.
I crafted my speech based on my experience as a trial lawyer in the cases where I faced off against the government. My advice was to deny Trump what he wanted if that was possible. If not, delay his actions in the hope he’ll change focus or, with time, more allies will join you. If delay is not possible, I said to make the record clear. Document what is happening for a later appeal, or in Trump’s case, a later prosecution.
DENY! DELAY! MAKE THE RECORD CLEAR!
Here’s another step to add to this instruction for resistance.
ISOLATE Trump and his minions.
This is a call to action.
Let’s isolate ICE from local and state law enforcement by causing state and local officers and their insurers to worry about what will happen to them when Trump is done. These are non-violent actions. They may bear fruit and they may not, but it will take time. Plant your seeds now.
First, a note about Vice President JD Vance.
Vance is either a liar or incompetent as a lawyer, or both.
ICE agents are not immune from civil liability but getting them to court is hard. ICE can be sued under the Federal Tort Claims Act. If it chooses, Congress can make these suits easier by eliminating procedural requirements intended to trip up litigants.
Federal Tort Claims Act (FTCA) from the EPA:
The Federal Tort Claims Act (FTCA) is federal legislation enacted in 1946 that provides a legal means for compensating individuals who have suffered personal injury, death, or property loss or damage caused by the negligent or wrongful act or omission of an employee of the federal government. While there are exceptions to what claims may be payable under the FTCA, it generally allows individuals to recover monetary damages from the United States under circumstances where the United States, if a private person, would be liable in accordance with the law of the place where the negligent or wrongful act or omission occurred.
How do I know the FTCA can be used to sue the federal government for injuries it may have caused? Donald J. Trump told me so.
Trump is using the FTCA to sue the federal government for $10 billion dollars because he alleges the US government harmed him while investigating his connections to Russia. His claims are likely fabricated and he is counting on a compromised DOJ to pay him more graft, but the law he is using to bring the suit is the FTCA.
Robert Peck of South Portland, Maine has also recently filed an FTCA claim against ICE for harassing and threatening him when he tried to film ICE agents.
Local and state law enforcement are not immune and they may be easier to sue.
Local police, sheriffs, deputies, state police, and county jailers are not immune from civil liability. They can be sued under the FTCA when they assist ICE. They also can be sued directly for their own conduct under a federal statute that is less complicated than the FTCA.
42 USC § 1983
42 USC § 1983 (“§1983”) is a federal statute that allows a victim to sue law enforcement for violating their civil rights while acting under color of state law. A police officer acts under “color of state law” when he uses his authority as a law enforcement officer, even if his actions are improper. Your civil rights are violated when you are arrested or searched without probable cause, accosted for exercising your First Amendment rights to speech or to gather, or when you are injured through excessive force. Killing you is a violation of your civil rights.
Here’s where you come in.
We need to put local and state law enforcement agencies on written notice that ICE agents are bad actors who brutalize civilians and violate their civil rights. State and local agencies should be wary of helping ICE because it creates liability for them and their departments, even if ICE promises to indemnify them against money damages. There are other costs to being sued beyond paying damages.
Here’s an example.
In NH, ICE shipped people they’d kidnapped through the Pease Airport. In order to fly people out of Pease, ICE had to sign them in on a manifest. ICE agents asked local or state police to do the sign-ins for them. Now who’s liable for shipping a person from his home state to a dangerous detention facility? The local cop from East Nowhere who signed his name on the line making him ripe for suit.
How can you help?
A victim will be required to prove a state or local law enforcement officer knew about misconduct by ICE and helped anyway. No knowledge means the locals can claim a kind of qualified immunity. You help to defeat qualified immunity defenses by sending letters to your local police chief or county sheriff with factually checked, widely reported details of civil rights violations by ICE agents.
Also, Congress can act to limit qualified immunity defenses by statute but let’s not hope for too much.
We paper police chiefs, State Police colonels, sheriffs, and other leaders of law enforcement agencies with letters and news clippings warning them that they are creating liability for their department and officers by working with ICE. We flood the zone with these letters.
Tell the cops in your letters that JD Vance may claim that ICE has civil immunity against damages for their agents, but you don’t. Ask expressly for the chief, sheriff, jailer, or safety commissioner to whom you write to tell you what they are doing to keep their officers from being sued for helping ICE.
That’s part one.
Send a copy of your letter to the companies that insure municipalities and states against liability for law enforcement misconduct. If you don’t know who insures your police department, ask elected officials to disclose their liability policies for police misconduct. If they won’t cooperate, use your state Freedom of Information Act to request the policy. In NH, that’s the Right to Know Law.
Most counties, towns and cities in NH insure against suits alleging civil rights violations with a pooled risk company called NH Primex. Your state likely has its own pooled risk insurers.
The address for NH Primex is 46 Donovan Street, Concord, NH 03301. When you send your letter to Primex, ask why Primex continues to write law enforcement liability coverage for towns and counties that cooperate with ICE as it jeopardizes the finances of the entire risk pool.
Travelers, Liberty Mutual and Chubb are large companies that also insure police misconduct claims. You know what the insurers will do. They’ll raise rates and drop agencies that get too many claims. That motivates departments to protect their financial interest.
State Police departments won’t likely have insurance but states partially waive sovereign immunity by statute. NH has a Board of Claims that entertains claims up to $50,000 against state agencies including the State Police. After that you must sue the state in court the same way that YDC sexual abuse victims are suing the state for failing to protect them.
NH Agencies that cooperate with ICE.
The NH branch of the ACLU has identified thirteen NH agencies with express contracts (MOUs) to work with ICE. They are suing ICE to get their training materials. Good for the ACLU!
The agencies contracting with ICE are NH State Police; Auburn, Candia, Carroll, Colebrook, Gorham, Ossipee, Pittsburg, and Troy Police Departments; and the Belknap, Grafton, Hillsborough, and Rockingham County Sheriff’s Departments.
There is a national public database listing all the local and state agencies that have signed MOUs to assist ICE. Look up the cooperating agencies in your state and start writing to them. Do it respectfully and factually but be direct. Best if you are a resident in the jurisdiction. Ask how the head of your local law enforcement agency is keeping their department safe from suit.
Disclaimer
I do not intend this post to be legal advice. The readers of my Substack are not my clients. Use your best judgment. If you think you have a claim because you were injured by ICE or state or local law enforcement, find a lawyer in your jurisdiction who understands the FTCA, §1983 suits and how to sue law enforcement. Your local ACLU branch may be able to refer you. Lawyers who are members of the National Lawyers Guild or the National Police Accountability Project also may be able to help.
A final word.
I have sued police officers in federal court for hurting and killing my clients or arresting them without cause. I have argued before NH’s Board of Claims. I also represented many police officers and chiefs who were fired for illegal reasons. This column is not intended as a threat to the men and women who do police work. Their departments put them at risk when they work with ICE and they should know what’s at stake.