Suing Stephen Miller

It's time to put everyone from Stephen Miller and Tom Homan to the most recent ICE hire on notice: a reckoning is coming

(Photo by Finn Gomez/Getty Images)

Last week I had an op-ed in the New York Times arguing that if the Democrats retake Congress, they should pass legislation that would (a) create a cause of action to sue federal law enforcement officers for violations of constitutional rights, and (b) create a cause of action to sue supervisors and political appointees whose policies, priorities, and personnel decisions are responsible for these violations. Both should be retroactive enough to include the killings, beatings, and wrongful detainments we’re currently seeing around the country.

For some broader context on why it’s all but impossible to sue any of these people currently, I’ve also written a two-part series for the new Liberalism.org site that provides some history and context for the larger issues of the qualified immunity granted to state and local law enforcement, as well as the near-absolute immunity granted to federal law enforcement.

Some Democrats in Congress have already introduced legislation to create a way to sue federal police officers, including immigration cops. But the idea of holding policymakers and political appointees civilly liable is more controversial. Both the Supreme Court and Congress have been reluctant to introduce any sort of liability for supervisors and appointees, because they don’t want the people around the president to feel inhibited when providing advice. I understand that instinct, but frankly, after the last 19 months, inhibition doesn’t really feel like much of a problem.

The leaders of the second Trump administration made clear well before the 2024 campaign that they intended to purge the federal government of anyone who prioritizes norms, democracy, individual rights, or the Constitution ahead of Trump’s agenda. They’ve done exactly that. Trump, Stephen Miller, Pete Hegseth, Russell Vought, and the other titular figures of this administration have cycled through both career civil servants and the few remaining political appointees with any principle. The least grounded, most ruthless, most sycophantic toadies have risen to the top.

There needs to be some deterrent. You shouldn’t be able to order the military to carry out extrajudicial executions of fishermen and/or low-level drug runners that violate both domestic and international law, and then simply return to your job as a weekend cable news host once the other party retakes the White House. You should not be able to lie to the courts about sending immigrants to an overseas torture prison with zero due process and then live out your days with the lifelong job security of a federal judge. You should not be able to write a bullshit, meritless, bad faith legal memo while working at the Office of Legal Counsel that authorizes immigration officers to ignore the Fourth Amendment and batter down the doors of private homes without a warrant, then go on to make millions as partner at a white shoe law firm.

And no, you shouldn’t get to instruct armed federal immigration officers to use more violence, more aggression, and more force, to demand that they racially profile, and to require them to inflict pain and suffering for its own sake — and then move on to a high-paying lobbying job or collect honoraria on the neo-Nazi speaking circuit once you’re no longer in power. You shouldn’t get to libel the people your goons just gunned down in the street — as they’ve done over and over and over — and then get to pretend it never happened.

At the very least, Stephen Miller, Tom Homan, Markwayne Mullin, Kristi Noem, and the other Trump II officials whose policies have caused unnecessary death should be writing checks to the families of Renee Good, Alex Pretti, Joan Sebastian Guerrero, Lorenzo Salgado Araujo, and Silverio Villegas-Gonzalez — among others — for the rest of their lives.

Yes, policymakers and supervisors should get a lot of leeway. But from the start of Trump’s second term, Stephen Miller has told immigration officers that they have “immunity” from any culpability — criminal or legal — for their actions. He has overseen the recruiting messages from DHS that use explicit white nationalism and aggression in messaging to new hires. He has imposed quotas on ICE officers, and told them to start racially profiling and aggressively arresting immigrants at car washes, Home Depot parking lots, and other places where immigrants gather, a policy intended to spread fear and terror, that deliberately targets nonviolent people, and that has inevitably swept up legal residents and U.S. citizens.

After the death of Renee Good, Miller reportedly demanded that ICE and Border Patrol officers get more aggressive with protesters. They killed Alex Pretti days later. Even after the killings last week, Miller and Homan were unchastened. They vomited up their usual garbage blaming “Antifa,” the “radical left,” and anti-ICE rhetoric. (There were no protesters involved in either killing, nor is there any evidence — aside from the contradicted claims from the officers themselves — that either man intended any harm to immigration officers.)

On Fox News, Homan threatened more violence, promising “there's still gonna be more bloodshed” unless ICE critics “shut their mouth and let ICE enforce the laws that they enacted.” That isn’t just overheated rhetoric. It’s an explicit threat of violence as retaliation for protected speech. It is by itself a violation of the First Amendment. And it’s just an astonishing thing a government official to say, much less one who oversees tens of thousands of armed officers.

Currently, there is no real remedy available if the federal government violates your constitutional rights.

First, there’s no criminal or professional accountability because the current administration has made clear that it doesn’t believe that vast swaths of the population — immigrants, protesters, Democrats, victims of police abuse or government-imposed racial discrimination — have rights worth respecting. So not only is this administration not enforcing the rights of those groups, it’s actively violating them, as a matter of policy.

Second, there are no civil remedies because the Supreme Court has all but nullified them.

Finally, Trump has promised a blanket pardon to everyone in his administration before he leaves office. That means there isn’t even any threat of criminal liability for the most serious and profound abuses — the murder of U.S. citizens — at some point in the future.

This is a crisis. We have an administration that tells the country that immigrants are subhuman, that shamelessly slanders them, and preaches that they “poison the blood” of the country. It’s an administration that believes people who defend immigrants are “domestic terrorists” who aren’t protected by the First Amendment, and don’t deserve due process when they’re gunned down in the street. And because of the dereliction of Congress and the Supreme Court, there’s really no legal or civil remedy available for the people it abuses, harms, and kills. We’re left only with blue state prosecutors and legislators trying to impose criminal and civil liability under state laws — long-shot measures that will take years to work their way through the courts, and are likely to be greeted with hostility from the current Supreme Court.

This is not what the framers of the Bill of Rights intended.

I only had about 1,200 words to make this argument for the New York Times. So I want to use the rest of this post to address some feedback on the piece.

---

Wouldn’t making civil liability retroactive violate the Constitution’s prohibition of ex post facto laws? Doesn’t it seem unfair?

The Supreme Court has ruled that the prohibition on ex post facto laws applies only to criminal law, not civil. So retroactivity is definitely legal, at least under current law.

The one area that’s less clear is punitive damages. It’s possible that the federal courts may decide that the ex post facto provision does bar retroactive punitive damages. I think Congress should make punitive damages available anyway. If the courts strike it down, then actual damages would still be better than nothing at all.

How would a law making policymakers and leadership civilly liable work? It’s easy to see how a police officer unjustly shooting someone is directly violating that person’s rights. How do you connect that act to political leadership?

It will not be an easy case to prove. And it probably shouldn’t be. I agree that policymakers should have wide latitude to recommend and implement an elected president’s policies and preferences.

But surely there are some lines that we can’t allow to be crossed. There’s ample evidence that high-ranking staff and agency leaders have explicitly and directly instructed law enforcement officers to violate the constitutional rights of U.S. citizens and residents. Miller reportedly responded to the unjustified killing of a Good, a protester, by demanding that immigration officers get more aggressive with protesters. It doesn’t require a whole lot of dot-connecting and speculation to see how that resulted in the killing of Pretti.

I’m not a lawyer or a drafter of legislation. But the Supreme Court already allows victims of constitutional violations to sue local governments for policies and practices that foreseeably caused or led to that abuse under Monell v. Department of Social Services. Congress could pass a law that similarly looks to whether a political leader’s instructions, hiring decisions, disciplinary instructions, rhetoric, and other policies foreseeably caused or created the conditions for the constitutional violations in a particular case.

---

---

The current Supreme Court has reliably defended police immunity, and appears to have six justices who believe in a unitary executive with little accountability outside of Congress and elections. Do you think they’d go along with this idea?

I understand and share the cynicism. But this court has also made clear that it is up to Congress to create remedies for violations of the Bill of Rights. I think that’s wrong, but that’s where we are. If a Democratic Congress and president pass these laws and the court strikes them down, we’ll at least know that the Roberts court does not believe civil liability is ever an appropriate remedy for constitutional violations. It would be a profound abrogation of the court’s most important function — safeguarding the Bill of Rights. And that would be a useful thing to know when we start looking at Supreme Court reform.

How does what you’re proposing jibe with qualified immunity?

Qualified immunity is the Supreme Court-created doctrine that says in order to get a lawsuit for civil rights violations in front of a jury, you have to show that (a) your rights were violated, and (b) the officer’s specific actions that violated your rights are unconstitutional under clearly established law. It’s that second prong that trips so many of these cases up, and that proponents of abolishing or reforming the doctrine (including me) believe needs to be changed.

Federal employees (including cops) are also protected by qualified immunity. It’s just that these cases don’t even get that far, because the Supreme Court has ruled that there is no real way to bring a civil rights lawsuit against a federal employee. Currently, the one way to bring any sort of litigation is the Federal Tort Claims Act. As the name suggests, that law treats constitutional violations as torts, and has far too many limitations and procedural hurdles to be an effective remedy.

So while Congress should also reform qualified immunity for state and local police (which it also has the clear power to do), even subjecting federal officials to that would at least be a start.

Most police officers are indemnified for any damages that result from their abuse and misconduct. Why should taxpayers pay for the damage done by people like Miller, Homan, Noem, and others? And wouldn’t that lack of personal liability nullify any deterrent effect?

It’s true that police officers are almost always indemnified from having to pay victims of their abuse and misconduct. But this is only because public officials have chosen to indemnify them. There’s no law requiring that they do so.

So Congress could (and should!) address this, too. Civil rights lawyers tell me that Congress could easily include a provision in any law they pass requiring that damages first be paid by the liable party or parties. Public funds would only come into play once a court determines that the target of the lawsuit can no longer pay, and public funds are necessary to make the injured party whole. For someone like Miller, who is conceivably liable for countless violations, that would happen pretty quickly.

But the government represents us. This country elected this administration knowing what they planned to do. We owe it to the victims of these policies to compensate the people injured and killed by its lawlessness and cruelty.

Wouldn’t Trump just veto any bill like this? If the Democrats retake Congress, shouldn’t they wait until 2029 when there could be a Democrat in the White House?

They could just pass these bills again then too. Assuming the Democrats retake Congress, I think it’s important to pass these laws quickly to send a message to Trump officials and federal immigration cops that culpability is coming. They need to know that they do not have carte blanche to continue inflicting pain and violence for the next two years. It would make clear to everyone responsible for the cruelty and deaths we’ve seen that we are one presidential signature away from imposing lifelong financial accountability on whoever’s policies, instructions, and bullets produce the next Alex Pretti or Joan Sebastian Guerrero.

Given their track record, do you really think the Democrats have the backbone to pass a law like this?

I don’t know. But again, several Democrats have already signed on to both reform qualified immunity and impose some sort of liability on federal police. We can only recommend what we want them to do. We can’t make them do it.

I generally don’t trust politicians to do the right thing when doing so is unpopular. But the good news is that these laws wouldn’t be unpopular. Trump is currently significantly underwater on immigration. It’s clear that the public in general is angry about these deaths, and that it opposes policies like the occupation of Minneapolis. That could always change, of course. But if a sentiment like “the executive branch should not be able to kill people with impunity” can’t muster a healthy majority of support, I’m not sure there’s a whole lot of hope left for this country.

These people belong in prison. ICE should be abolished. Letting Miller, Homan, and these officers off with civil damages doesn’t go nearly far enough.

Creating a path of civil liability wouldn’t foreclose on the myriad other ways to hold these people accountable. As I wrote in the op-ed, I think state and local prosecutors should pursue criminal charges against immigration officers where appropriate. I think state legislatures should create state causes of action. I too think ICE and Border Patrol are far too corrupted to be reformed, and should be abolished. And if Trump for some reason fails to issue his blanket pardon, I think the next administration should pursue criminal charges where appropriate.

But under the current legal and political landscape, this is one thing Democrats could do to provide at least some deterrent and accountability for this administration’s worst abuses. It would at least let them know that a reckoning is coming.

---