Can you sue ICE?

0:00In Chicago, residents have been resisting ICE. You're going to use that gun on your people. Shame on you. I hope right now your ancestors are looking at you. The epicenter of the resistance is a village called Broadview, where there's a big processing center. People are also being detained there. No one knows entirely what's going on inside, although there are a few stories. So there are very limited facilities for hygiene. There's no food preparation there. We hear that they get one meal a day. They're basically 250 men packed into a single room with no air. So we hear complaints that it's really a hellish place to be.

0:47Coming up on Today Explained, as Chicago fights ice in the streets and in front of places like Broadview, a question is emerging. Is it better to fight ice in the courts? Support for this show comes from Odoo. Running a business is hard enough, so why make it harder with a dozen different apps that don't talk to each other? Introducing Odoo. It's the only business software you'll ever need. It's an all-in-one, fully integrated platform that makes your work easier. CRM, accounting, inventory, e-commerce, and more. And the best part? Odoo replaces multiple expensive platforms for a fraction of the cost.

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1:42This is Today Explained. I'm Noelle King. You've seen this viral photo of David Black, the pastor in Chicago. It was taken a split second after ICE maced him. He's like angling his body away from three men in masks and camo. It looks like something out of the 60s. Anyway, David Black is part of a group of faith leaders who have been protesting ICE. And he put us in touch with Pastor Quincy Worthington of Highland Park Presbyterian, who talked to us about what's been happening and how he ended up protesting at Broadview. At the beginning of September, I went to a Faith Over Fear rally and press conference in Daley Plaza that was about Operation Midway Blitz ramping up and about a faithful response to that.

2:30And David was there and he spoke. Donald Trump thinks he has a hammer in his hand and he thinks he can bring that hammer to Chicago. But he's about to find out that Chicago is an anvil. Through conversation of asking him what was going on and what he was doing, he told me about Broadview and the things that were going on there. And he said that it would be really great to have more clergy presence there because we provide a sense of calm and can help de-escalate things sometimes if it needs to be de-escalated. And so I told him I would be happy to join him at those and went that Friday. And then that night when the picture was taken, he and I had actually just arrived there together.

3:13And I was checking in with people at a supply table, finding out who the medics are because they'd been releasing chemical munitions on us before. And one of the things I've been trying to help do is get protesters safely away from the chemical munitions and to get the medical treatment if they need it, helping flush out eyes. And while I was connecting there, David went up front, as he usually does, to pray, to plead to the humanity of the officers.

3:43And he had finished doing that and was turning around to walk away. and the agent on the roof shot him in the top of the head with a pepper ball. God is watching you! And you will pay for this!

4:11Were you surprised that this happened? Oh. I think by that time, no. I mean, I guess you're surprised every time it happens. I wasn't shocked. ICE has been escalating their response to protesters every time we've gone. So I think I was a little taken back in the moment that it was just a random potshot that they took at him. But it wasn't entirely surprising that that's how they responded. When did things start to escalate between the protesters outside of Broadview and law enforcement? And what did it look like when it did? When I started going in September, what we would notice is an escalation both throughout the day and then every week that we would go.

5:01Together we will abolish us. We can't live. We can't live. We can't live. We can't live. We can't live. like there would be some people who would block the driveway or we would be in the road. But they would come out with absolutely zero warning. There wouldn't be any orders to move until they were starting to push and shove people. Hey, listen, you got one warning, one warning normally. Everybody will move down the block into the right or you're going to be arrested. And so it started with them pushing and shoving people, throwing people to the ground. and then as the day progressed, you would see that get more and more violent.

5:47And what would happen essentially is it first started early in the day when vehicles would come in and out that they were trying to keep the road clear and protesters away, at least I assumed that's what they were trying to do. Then it seemed like they would randomly come out and just attack us. And so the pattern would be you would see one to three agents appear on the roof. You would see a drone go up in the air, and that's when you knew something was coming. And then as the gate would open, the men from the roof would shoot down pepper balls onto the protesters and sometimes rubber bullets.

6:26Watch out, watch out, watch out! Watch out, watch out, watch out!

6:32The gates would open anywhere from 20 to 50 agents agents, depending on how large the crowd, I guess, would be, would then rush into the crowd, essentially throwing tear gas at us, shooting us with pepper balls. I saw canisters of pepper spray that they would just douse the crowd in. They would shove people to the ground. They would sometimes grab somebody and detain them. Do you find this frightening? I find it terrifying. It seems like every time I go, that time is the scariest moment in my life. What you've just described went down in September. It's late October. Is this still happening at Broadview?

7:16Right now, there's a temporary restraining order preventing ICE from using chemical munitions. So we haven't seen that exactly at Broadview. We've seen it at other places in the city where ICE is conducting operations. But since October, Illinois State Police has come in. They have threatened to use chemical munitions, but have never released them that I've seen. Instead, they carry batons and use physical force. The pushback that you will get from the authorities is that these protests are turning violent, that the protesters are not just protesters. They're in some cases, and I quote, violent rioters.

7:55What have you seen? I have not seen anything to lead me to believe that these are violent rioters. I've never seen protesters acting any way but peacefully. They might yell things that I think are inappropriate, that I certainly wouldn't yell at somebody, but that's totally within their First Amendment rights. So I challenge that narrative. I have not seen anything that would look anything remotely like a riot. After what you've seen over the past couple of weeks, agents of the federal government, in your telling, attacking peaceful protesters, has this changed your feelings about law enforcement?

8:38I think this has changed my feelings about just about everything. I think it's made me seriously question my understanding of law enforcement and why they're there, the way the U.S. government operates. And I think on a personal level, it's caused me to struggle with and think deeper about my own faith and about what it means to be a person of faith and what it means to be a citizen of this country. As a minister and a professionally trained theologian, we often tend to think of these things in abstract ideas. There's this idea of essentially picking up your cross and following Christ, or are you willing to die for your faith?

9:20And those were kind of abstract ideas for me. I think in a very real sense, I've been forced to confront the very real possibility that by living out my Christian convictions, that I'm putting myself in serious jeopardy. For me, the call to follow Christ has to reign supreme in my life. And what I witness in the life and teachings of Jesus is a man who stands up to unfair oppression. He speaks boldly and prophetically about standing up for the least of these, about trying to give voice to those who feel voiceless and standing with people who can't stand by themselves and giving hope to the hopeless.

10:15More important than that, I think the linchpin, the reasoning behind that, is that Jesus firmly believed that every person is a precious child of God and that we're all created in the image of God. And that's something that's sacred and needs to be protected. And so when I see things that are blatant human rights violations and the denial of basic human rights to our brothers and sisters, I feel like if I'm going to stand in a pulpit on Sunday with any integrity and preach the gospel of Jesus Christ, that I need to stand with Jesus at Broadview to protect the humanity of everyone involved.

11:07That was Pastor Quincy Worthington of Highland Park Presbyterian. Pastor David Black, the one who got maced, says he forgives the officers who maced him, but he is suing. He says this violated his First Amendment rights. Coming up, can you just sue ICE and win?

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15:43You're listening to Today Explained. Vox's Ian Millhiser covers the Supreme Court. Ian, Americans, regardless of party, are worried about what ICE has been doing, which raises a big question that we've come to you to ask. Can lawsuits stop them? Right. I mean, the short answer to that is probably not. And that is somewhat by design. So there used to be several legal mechanisms that could be used to deal with police abuse or, you know, overreaching federal agencies. But the Supreme Court has been chipping away or even taking away the most effective means to do so. Can we walk through what those means used to be?

16:30OK, so broadly speaking, you know, I wrote a piece recently where I discussed five different ways that lawsuits could be used against an agency like ICE. So let's start with the most obvious one, which is injunctions. So the court isn't just saying you got to pay money because you did something bad in the past. It's the court is ordering you to stop doing something that you have been doing. This can be a very powerful way of checking the government, because if the government has a policy, you could potentially get an injunction saying that that policy needs to stop. Give me an example of when we might see a court use an injunction.

17:08Well, I'll give you a very recent case that is very relevant to this conversation. So the Trump administration sent a lot of ICE and other law enforcement personnel to Los Angeles. The federal government is not leaving L.A. I don't work for Karen Bass. The federal government doesn't work for Karen Bass. And better get used to us now because this is going to be normal very soon. And those personnel, a federal district judge found, were targeting a lot of individuals for, in some cases, unconstitutional reasons, like because of their race. We're targeting them because of where they worked. We're targeting them because they were in places where ICE believed that undocumented people frequently gather.

17:55And the judge issued an injunction saying, stop doing that. You can't arrest someone just because they're Latino. You can't arrest someone just because they're standing outside of a Home Depot. You have to have more than that as the basis of your arrest. And this case went up to the Supreme Court and the Supreme Court ruled they took out the injunction. They put the injunction on hold. And while the full court did not explain itself, Justice Brett Kavanaugh did. To be clear, apparent ethnicity alone cannot furnish reasonable suspicion. Under this court's case law regarding immigration stops, however, it can be a relevant factor when considered along with other salient factors.

18:40And part of his argument went back to this 1980s era decision called City of Los Angeles v. Lyons. The first case is City of Los Angeles v. Lyons, which is here in the Court of Appeals for the Ninth Circuit. The facts of Lyons are very tragic. There is a man who was choked out, or at least allegedly choked out, by a Los Angeles Police Department officer. He had been stopped for a traffic violation. And that then, without any provocation or legal excuse, the officer involved had choked him into unconsciousness. And that he feared that the same thing would happen over again. And what the Supreme Court said is that he cannot get an injunction preventing the LAPD from choking people unless he could show that he personally is likely to be choked by an L.A.

19:41police officer again. OK, so for the moment, it seems like injunctions are out. The next thing, given that this is the United States of America and we all do, regardless of where we come from, love a good lawsuit. I wonder about people who feel they've been mistreated by ICE officers suing them. So here again, there used to be some very serious protections against law, at least federal law enforcement abuse, and they basically no longer exist. So it used to be the case that if a federal law enforcement officer violates your constitutional rights or, you know, commit some other legal violation, you could sue the officer.

20:26And that was an effective deterrent. You know, officers, if they knew that they personally might not be able to pay their mortgage, if they break the law, would be less likely to break the law. But the Supreme Court has not entirely overruled the case that used to say that you were allowed to sue federal officers under these circumstances was called Bivens. It began in the early morning darkness in November five years ago. And six narcotics agents with guns drawn forced their way into Bivens' home in the Bronx and proceeded to conduct a thorough and apparently fruitful search. They put handcuffs on him in front of his wife and children.

21:07after a complaint against Bivens was dismissed. But too poor to hire a lawyer, he decided to sue the agents for the outrage he'd suffered. And the Supreme Court hasn't overruled Bivens explicitly, but they've come pretty damn close. There was a case maybe five years ago called Hernandez v. Mesa. The allegations in this case were essentially there were a group of Mexican teenagers who were playing a game by the border where they would run up to the border or like to a wall or something at the edge of the border, they would touch it and run back. And that was the game that they were playing. And the allegation is that a border patrol officer shot one of these Mexican teenagers in cold blood.

21:50And the Supreme Court said, even if the plaintiffs, it was the boy's family, could prove that, yes, this was a murder, that this officer just pulled out his gun and shot this kid in the face, nothing can be done. Right. So two of the five options that once upon a time one might have had are now out. What's the third? The third is a little more promising, but it is much weaker. So there is a federal law. It's called the Federal Tort Claims Act. And I'm going to just read off a list of illegal things that this covers. So this law sometimes permits lawsuits against federal law enforcement officers who engage in, and here's the list.

22:38Assault, battery, false imprisonment, false arrest, malicious prosecution, abusive process, libel, slander, misrepresentation, deceit, and interference with contract rights. So if a ICE officer has assaulted you, battered you, falsely imprisoned you, falsely arrested you, maliciously prosecuted you, abused process, libeled you, slandered you, misengaged in misrepresentation, deceit or interference with your contract rights, you can potentially sue under the Federal Tort Claims Act the United States government. Ah, the whole country. Exactly. And if you win, then you'll get money. You will get money paid out of the United States Treasury.

23:25The bad news is that that money is going to come from the United States Treasury, like the taxpayer. And so, like, if I'm a rogue ICE officer or for that matter, if I'm a rogue president who is ordering these ICE officers to violate the law, what do I care if the United States Treasury has to pay out some money? Like, you know, it gives people some compensation after the fact. And that's not nothing. But I doubt that this is going to be effective in deterring bad actions by bad law enforcement officers or by bad political officials because they aren't on the hook for the money. The taxpayers are on the hook.

24:04All right. So you've ticked us through three of the options. We have two more. What's next? Yeah. So both of the remaining options fall under the same umbrella, and that is criminal prosecutions. So, I mean, there are some federal laws which govern how law enforcement officers are supposed to behave. And conceivably, if an officer violates one of those laws, they can be charged with a crime. The problem with that approach is, first of all, federal criminal charges have to be filed by the Department of Justice. And the Department of Justice right now is controlled by Donald Trump. And so I am very skeptical that the Trump Justice Department is going to bring any of these cases.

24:48Now, you know, the fifth category that I discussed, I'll just discuss very briefly because this is something the Supreme Court has cut off entirely. But until last year, the president could potentially be charged with a crime if they give an illegal order or otherwise engage in criminal activity. But of course, the Supreme Court cut that off in Trump v. United States, which said that the president is immune from criminal prosecution for his official acts. If the president must make official decisions under constant threat that trial, judgment and imprisonment may befall him upon his exit from office, there is great risk that his decision making will be distorted while he is in office.

25:27There was even a whole two-page section in that opinion which said specifically that Trump cannot be charged with the crime even if he orders the Justice Department to target someone for an improper purpose. That was the court's words. So, you know, I mean, at least for people who aren't named Donald Trump, there is still the possibility of criminal prosecution, but it will almost certainly have to wait until the next administration. Ian, I think a lot of people have assumed that if, you know, taking video of ICE officers behaving badly isn't going to work, if being detained as an American citizen by ICE and getting out and telling your story isn't going to work, if protesting in the streets isn't going to work, the thing that might work is a lawsuit.

26:16It sounds like what you're saying is, no, don't count on that. I think that is the takeaway. Do not expect the courts to. I mean, at what point have these courts been effective in saving us from Donald Trump? I mean, you know, there were multiple prosecutions against Donald Trump. And what the Supreme Court said is he's immune. So like the way to stop the government from behaving this way is to put someone else in charge of it.