Vermonters who accuse federal agents of violating their constitutional rights will soon be able to take them to court after Republican Gov. Phil Scott reluctantly allowed a bill to go into law without his signature on Monday.
Though federal law allows citizens to sue state and local officials for excessive use of force, unlawful searches and other constitutional breaches, there’s no comparable recourse for transgressions by federal officials.
As concerns mount over tactics employed by federal immigration officers nationwide, including in Vermont, South Burlington Rep. Martin LaLonde said it’s time to “close that gap.”
“We are seeing where there are potential violations across the country,” said the Democratic chair of the House Judiciary Committee. “And I think that it has shown that we should be holding all officials, whether they’re federal, state or local, to upholding the U.S. Constitution.”
In a letter to legislators Monday, Scott said he supports their effort to hold federal officials accountable in state court, “when a remedy may not be available under federal law.” But he said he worries the law won’t survive a legal challenge, “which may give Vermonters false hope.”
“Having said that, the Attorney General has advised they feel the bill is defensible, so I’m allowing it to become law without signature, and we’ll see if this, and similar measures enacted in other states, hold up in court,” Scott said.
Maine, Massachusetts, New Jersey, California and Illinois have all enacted similar laws; Illinois’ statute is the subject of a pending lawsuit.
Attorney General Charity Clark said in an interview Tuesday that, since the law will likely face a constitutional challenge, she can’t talk about a prospective defense.
“My office is prepared to defend the law as, of course, is our duty, and we believe the law is defensible,” she said. “There is evolving legal landscape related to this federal liability, and as the governor noted in his letter to the Legislature … we do anticipate litigation.”
A majority of House Republicans opposed the legislation as a result of those litigation concerns. House Minority Leader Pattie McCoy said lawmakers didn’t sufficiently examine issues related to constitutionality before bringing the legislation to a vote. Clarendon Rep. Dave Bosch, a retired federal employee, said the measure is “clearly beyond our reach with regard to federal officials.”
Numerous legal scholars testified in favor of the bill, however, including James Pfander from the Northwestern University Pritzker School of Law in Chicago. He noted Vermont’s law should hold up against potential claims it discriminates against federal agents since it also applies the same standard to state and local officials. And since the Constitution already requires law enforcement officers behave appropriately, a court could conclude this law doesn’t add any new regulatory burdens.
Falko Schilling, with the Vermont chapter of the American Civil Liberties Union, said the Immigration and Customs Enforcement operation in South Burlington on March 11 underscores the need for civil remedies for federal overreach.
The bill, which takes effect July 1, creates a new “cause of action” that would allow Vermonters to seek monetary damages for constitutional violations by federal agents. While the ACLU is still reviewing evidence from March 11 to determine if ICE officials violated protestors’ rights, Schilling said the episode “shows exactly why we need to have laws like this on the books.”
“If federal officials are violating your constitutional rights, you deserve your day in court,” he said.
The Legislature has been considering other bills related to conduct by federal immigration officers. But LaLonde said his committee will likely scrap a measure that sought to limit use of face masks by ICE agents, and require them to visibly display identification while carrying out official duties.
A recent ruling from the United States Court of Appeals for the Ninth Circuit struck down a similar law in California. LaLonde said the court’s ruling — it found that the California law unconstitutionally regulated federal activities — “seems actually very solid.”
“We feel that it’s probably not worth proceeding with the very real risk that this would be found unconstitutional,” he said.
