By now, you’ve probably seen some of the videos of Immigration and Customs Enforcement (ICE), as well as other federal law enforcement agencies, attacking immigrants and unarmed Americans protesting President Donald Trump’s immigration policies. In one, officers shoot a pastor in the head with a pepper ball. In another, an officer sprays pepper spray directly into the air vent of a protester dressed in an inflatable frog costume — in an apparent attempt to fill the suit with noxious gas.
This administration’s abuse of immigrants, protesters, and Trump’s perceived enemies appears to be systemic. An August report by Sen. Jon Ossoff’s (D-GA) office identified 510 “credible reports” of human rights abuses in immigration detention facilities since Trump took office in January. ProPublica found that over 170 US citizens have been held by immigration officials, some of whom were beaten or worse.
Even high-ranking elected officials are victims. Last May, for example, federal law enforcement forcibly arrested Newark Mayor Ras Baraka (D) after Baraka sought a tour of an immigration detention facility. After those charges fell apart, the Trump administration indicted US Rep. LaMonica McIver (D-NJ), who attempted to shield Baraka from arrest. In a video cited by McIver’s attorneys, one of the officers claims that Baraka’s arrest was ordered by US Deputy Attorney General Todd Blanche.
Worse, the Supreme Court — or, at least, its six Republicans — appears to be entirely on board with these tactics. In September, the Republican justices voted to block a lower court order that, among other things, forbade ICE from targeting suspected undocumented immigrants solely because of their race. That case is known as Noem v. Vasquez Perdomo.
The Republican justices rarely explain their decisions when they rule in Trump’s favor, but Justice Brett Kavanaugh did write a concurring opinion explaining why he voted the way he did. His assertion that someone targeted by ICE’s “apparent ethnicity” was “relevant” to law enforcement deciding whom to stop has received the most attention, as Kavanaugh seemed to blow off fears that federal law enforcement is targeting Latinos because of their race. But Kavanaugh also strongly implied that no one victimized by ICE may seek an injunction prohibiting ICE from engaging in illegal tactics in the future. (In the wake of this decision, many commentators are now referring to ICE’s tactics as “Kavanaugh stops.”)
So are there any legal avenues left to challenge abusive tactics by ICE, or by other law enforcement agencies controlled by Trump? The short answer is that a few narrow pathways still exist, but they are unlikely to provide a meaningful check on ICE’s behavior.
Broadly speaking, there are five ways that the law could constrain federal law enforcement:
- A federal court might issue an injunction against a law enforcement agency, barring it from continuing to engage in a particular illegal practice. Kavanaugh’s opinion in Vasquez Perdomo, however, suggests that this Supreme Court will not allow such an injunction to stand.
- A court might order an individual law enforcement officer to compensate the victim of that officer’s illegal action. The Republican justices, however, have largely cut off this avenue in two decisions handed down in the past five years.
- A victim of illegal behavior by a federal law enforcement officer might sue the United States and seek compensation. The Supreme Court’s unanimous decision in Millbrook v. United States (2013) suggests that this avenue remains open — although it is unlikely that either Trump or any individual officer will change their behavior because they fear that the US Treasury may have to pay out some money at some future date.
- A law enforcement officer, or perhaps a senior law enforcement official, might be criminally prosecuted. Such a prosecution would depend on whether an existing criminal law already prohibits the officer’s activity (or potentially, whether it prohibits an order to an officer given by a senior official). And it is unlikely that any such prosecutions will happen for as long as Trump controls the Justice Department.
- Finally, until recently, Trump himself could potentially have been prosecuted if he gave an order that violates federal criminal law. But the Republican justices gave Trump sweeping immunity from prosecution in Trump v. United States (2024).
Let’s look at each of these options in a bit more detail.
“Kavanaugh stops,” and injunctions against law enforcement
It is quite difficult to obtain a court order prohibiting a law enforcement agency from committing an illegal action in the future, and it has been for more than four decades. The seminal case is City of Los Angeles v. Lyons (1983), which held that Adolph Lyons, a man who was allegedly placed in a chokehold by police officers without provocation, could not obtain a court order forbidding the Los Angeles Police Department from using these chokeholds in the future.
Lyons held that “past exposure to illegal conduct” does not permit someone to seek an injunction prohibiting similar conduct in the future. Instead, the Court concluded that “Lyons’ standing to seek the injunction requested depended on whether he was likely to suffer future injury from the use of the chokeholds by police officers.”
To prevail, in other words, Lyons had to show that he personally was likely to be choked a second time, at some point in the future, by a Los Angeles police officer.
In Vasquez Perdomo, Kavanaugh claimed that the plaintiffs’ argument challenging ICE’s actions in that case “largely tracks the theory rejected in Lyons.” The plaintiffs in Vasquez Perdomo alleged that they were stopped by ICE for impermissible reasons, including because they are Latino. But Kavanaugh claimed that they have “no good basis to believe that law enforcement will unlawfully stop them in the future based on the prohibited factors.”
As a factual matter, Kavanaugh’s claim is dubious. A federal appeals court found that “at least one individual with lawful status was stopped twice by roving patrols in just 10 days.” So the fact that ICE targeted this one individual twice in such a short period suggests that they were likely to be targeted again unless a court intervenes. The Trump administration also repeatedly targeted certain businesses where they believed that undocumented people worked — one car wash was hit four times in nine days, according to Justice Sonia Sotomayor’s dissent. So the workers in that car wash sure seemed to be likely to be targeted again in the future.
Ultimately, however, the real facts underlying a Supreme Court case matter a whole lot less than what a majority of the justices say about the facts of a case. Both the Court’s decision in Vasquez Perdomo, and Kavanaugh’s reliance on Lyons in his defense of that decision, suggest that this Court is unlikely to allow anyone who is illegally targeted by ICE to seek an injunction against that law enforcement agency — even if in reality, these very decisions give the Trump administration permission to target the same people over and over again.
The death of Bivens: Why ICE officers can no longer be sued for breaking the law
More than half a century ago, in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (1971), the Supreme Court held that the victim of an unconstitutional action by a federal law enforcement officer could sue that officer and potentially collect money damages directly from them. Bivens explained that an officer who acts unlawfully “in the name of the United States possesses a far greater capacity for harm than an individual trespasser exercising no authority other than his own.” And so it follows that there should be a meaningful remedy to discourage officers from abusing their power.
But this view of accountability has long been out of favor with a majority of the justices. And, in two recent cases, the Court’s Republican majority have come very close to overruling Bivens outright.
In Hernández v. Mesa (2020), the Republican justices ruled that a US Border Patrol agent who allegedly shot and killed a 15-year-old Mexican boy in cold blood could not be sued, even if the boy’s parents could prove that the shooting was unjustified. And, in Egbert v. Boule (2022), the Republican justices immunized Border Patrol agents who allegedly used excessive force against an innkeeper from lawsuits.
Both decisions were exceedingly hostile to Bivens. In Egbert, for example, Justice Clarence Thomas’s majority opinion concluded that courts should reject Bivens suits if there is “any rational reason (even one)” to do so.
Given these decisions, it is safe to say that the current slate of justices will not allow an ICE officer to be sued by their victim, even if the officer clearly violated the law or the Constitution.
Suits against the United States: A weak, but still viable, remedy
The Federal Tort Claims Act frequently permits the United States to be sued if a federal law enforcement officer engages in “assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.” And the Supreme Court took a fairly expansive view of how this law applies to bad actions by law enforcement in its unanimous decision in Millbrook v. United States (2013), a case about a prisoner who sued corrections officers who allegedly threatened and sexually assaulted him.
So it is likely that even this Supreme Court would allow some victims of illegal activity by ICE, or similar agencies, to sue the federal government and seek compensation from the United States Treasury.
That said, it is doubtful that this remedy will do much to deter future lawless behavior by ICE. Neither an individual law enforcement officer, nor the senior Trump administration officials giving them orders, are likely to change their behavior because, maybe a year from now, a federal judge might order the US Treasury to pay money to someone who was victimized by ICE.
The whole point of Bivens was to impose consequences personally upon rogue officers, so that they will be deterred from breaking the law. A lawsuit requiring US taxpayers to compensate victims is unlikely to achieve the same goal.
Criminal prosecutions: Maybe in the next administration?
Finally, to the extent that any individual law enforcement officer violates a federal criminal statute, they might be prosecuted for doing so. That’s highly unlikely to happen, however, for as long as Trump rules the Justice Department. Any future prosecutions are likely to turn on who wins the 2028 election.
One person who will suffer no criminal consequences, however, no matter how many laws he breaks, is Donald Trump. The Republican justices’ decision in Trump v. United States (2024) held that Trump is immune from prosecution for his official acts as president. That decision even said that he is immune if he orders law enforcement to target someone “for an improper purpose.”
Moreover, even if some law enforcement officer — or maybe some Trump political appointee — is prosecuted for unlawful actions, there is always some risk that the same Republican justices who invented the concept of presidential immunity from prosecution will also decide to immunize officers who were carrying out Trump’s orders. Trump could also use his pardon power to protect them.
So if you hope that ICE officers, and other federal officials who have abused their powers, will someday be held to account for their actions, the news is not good. The Supreme Court has cut off the most effective ways of ensuring that federal law enforcement officers comply with the law.
