Gov. Kathy Hochul wants to open the door for New Yorkers to sue federal officials, namely immigration enforcement like ICE, in state court. But advocates fear her proposal will block or delay the same lawsuits she intends to greenlight through language codifying qualified immunity as a defense.
The legal doctrine — which stems from Supreme Court landmark decisions rather than the Constitution or a federal statute — protects government officials from personal liability in civil litigation while performing their duties. Left as it is, the Governor’s budget proposal would write it into state law for the first time.
“States have the inherent power to regulate federal officials, so long as they do so neutrally,” said Alexander Reinert, a legal scholar. “And creating a right for people to sue when they are injured by officers who violate the federal constitution is well within New York state’s authority. Nothing requires New York State to also codify the dangerous and illegitimate doctrine of qualified immunity.”
Roughly 70 organizations and elected officials — including many major critics of federal immigration enforcement — signed onto a letter penned to Hochul last week asking her to amend bill language to exclude qualified immunity as a defense or outright passing an existing bill to explicitly end the defense in state court.
“While we vehemently support efforts to hold federal immigration agents and their collaborators accountable, the current proposal undermines its own stated purpose,” they wrote. “By incorporating qualified immunity into New York State law for the first time, this proposal gives New Yorkers a day in court — and makes it all too likely they will lose.”
End QI NY, or the Campaign to End Qualified Immunity in NY, led the efforts. The coalition includes many key criminal justice reform organizations and civil rights law firms including the Innocence Project, the NAACP Legal Defense Fund, and the New York Civil Liberties Union.
State Sen. Robert Jackson, who signed onto the letter alongside fellow state lawmakers Pamela Hunter, Emily Gallagher, and Jo Ann Simon, called qualified immunity a “legal shield that blocks justice.” He currently sponsors the bill to end qualified immunity in the state.
“You cannot promise protection with one hand while handing out legal shields on the other,” said Jackson over a Zoom conference. “You cannot claim to resist federal outreach [then give] ICE a defense that they can use to escape responsibility. Accountability cannot be built on exemptions. Justice cannot survive behind loopholes. And so today, alongside legislators and organizations across this state, we are delivering a clear message: remove qualified immunity from the budget proposal and strike it from all program bills.”
On paper, qualified immunity prevents frivolous litigation against civil servants doing their jobs. But critics say the protection exists to prevent accountability. Two years ago, a federal court granted qualified immunity to North Carolina prison guards who left an incarcerated person in their care to eat with feces-covered hands.
To be clear, such protections also do not guarantee a blank check for state violence as the country awaits next steps for the federal agents who killed Renee Nicole Good and Alex Pretti in Minneapolis. But qualified immunity creates an uphill legal battle just to get the case in front of a jury, often disincentivizing attorneys to take on such cases.
A spokesperson for Hochul responded, addressing the proposal’s purpose. “Gov. Hochul has been clear: federal officers who violate someone’s constitutional rights must be held to the same legal standards that already exist for state and local officers under federal civil rights law,” she said. “The Governor continues to work closely with the state legislature to protect New Yorkers’ constitutional rights, and discussions are ongoing.”