Deployments of ICE and CBP officers to cities around America has caused confusion about the distinctions between these federal agents and regular law enforcement officers. One key difference is that state and local police are not federal officers, and federal officers operate under different authorities than those granted to state and local police. 

ICE and CBP cannot be held accountable in the same ways as state and local police if they violate state law on the job, and claims have begun to circulate from the vice president and others that federal agents actually have “absolute immunity” from prosecution for their activities at the state level. They’re wrong: federal agents can face state criminal penalties, including prison time, for violent, illegal conduct on the job.

Do federal officers have ‘absolute immunity’ from state prosecution? 

No. A federal officer can still be charged with and convicted of state crimes they commit while on duty and working in service of the federal government. 

But a federal officer does have some protection from state prosecution. The Constitution subordinates state laws to the federal government under the Supremacy Clause, which makes federal laws the “supreme law of the land.” We can expect federal officers to draw on a Supreme Court case from 1887, In re Neagle, and subsequent lower court cases to argue that the Supremacy Clause immunizes them from state prosecution for actions taken within their lawful duties as federal officials.  

The contours of the governing law are messy but the question of immunity likely turns on whether the prosecuted officer had a reasonable belief that federal law authorized or required the acts for which he is being prosecuted. It’s ultimately up to the discretion of a judge — or on appeal, multiple judges or justices — to determine whether the officer can be shielded from charges. 

How would such a case play out? 

If a federal officer were charged in state court for actions taken “on the clock,” the officer would likely try to have the case moved to federal court where they could then assert their immunity argument. A judge would then use a two-part test to determine whether the officer actually qualifies for the Supremacy Clause immunity they are claiming. 

The first part of the test involves determining whether the officer was acting as part of their official duties, and is a relatively low bar to clear. The second part of the test is a determination about whether the action at the center of the prosecution was “reasonable” based on the complete circumstances they were involved in. That question is evaluated from the perspective of the officer in question, and hinges also on the facts known to the officer at the moment they took the action in question. It’s typically the more difficult question to answer, and a judge relies on evidence and testimony to make the ultimate determination. Examples of conduct that would likely not be immune include (i) plainly unjustified violence, including when making an arrest; (ii) patently unjustified searches of a home or a body; or (iii) knowing use of false proof to obtain a warrant or to institute or continue legal proceedings.

Federal officials are exempted from accountability along another axis

In addition to claims of Supremacy Clause immunity that federal officers might make in criminal prosecutions, under current law it’s also not possible to sue federal officials for damages when they violate constitutional rights the same way one can sue state or local officials. But the Universal Constitutional Remedies Act, which is being proposed in several states, would remedy that. 

Once a state enacts the Universal Constitutional Remedies Act, individuals there will be able to sue any official — federal, state, or local — who violates the Constitution in court, ensuring that no one is above the law and that every American can seek justice whenever government agents violate the Constitution. 

If enacted, these laws could provide another pathway to accountability for those who are wronged by federal officials. Importantly, though, they are not the only form of accountability for federal officials who violate state laws.