Braden Beard is a civil rights attorney at Johnson, Webbert & Beard, LLP, which has offices in Portland and Topsham.
This past fall, Homeland Security Advisor Stephen Miller fired up his army of ICE agents by telling them they were above the law: “You have immunity to perform your duties, and no one — no city official, no state official, no illegal alien, no leftist agitator or domestic insurrectionist — can prevent you from fulfilling your legal obligations and duties.”
After the shooting of Renee Good, Vice President JD Vance declared that ICE agents were “protected by absolute immunity.” (Vance recently backtracked with a vague clarification.)
And last week, a whistleblower disclosed an internal ICE memo from May 2025 that declared ICE agents were not bound by the Fourth Amendment’s requirement to obtain a judicial warrant before entering a home to make an arrest. The memo included no supporting legal authority and was kept secret from Congress and the public.
The evidence is overwhelming that ICE agents are following their leaders’ guidance and acting without regard for legal ramifications. Take the recent case of ChongLy “Scott” Thao, a 57-year-old man who has been a U.S. citizen for decades. ICE agents broke into his house without a judicial warrant, dragged him into the snow in his underwear and kidnapped him for over an hour before releasing him. And this past weekend, ICE agents killed Alex Pretti for helping a woman in the street and exercising his Second Amendment right to carry a safely holstered firearm.
These examples reflect what has become standard procedure for ICE agents. They openly use excessive force against peaceful protesters and observers. They shatter car windows with no justification for doing so. And now they are kicking in people’s doors without judicial warrants and pointing automatic weapons at the occupants.
Fortunately, when it comes to the law, Stephen Miller, JD Vance and the ICE memo are wrong.
The ICE memo is, in the words of Sen. Angus King, “blatantly unconstitutional.” It ignores centuries of Supreme Court precedent explaining that the Fourth Amendment protects the sanctity of a person’s home and requires a judicial warrant based on probable cause before law enforcement may force entry. Even the current Supreme Court is unlikely to overrule that precedent in favor of allowing ICE to break in people’s doors based only on a document signed by an immigration official.
And ICE and its agents can be held responsible for their wrongdoing. States can prosecute ICE agents for criminal activity, though their ability to do so is limited. The federal government can also prosecute federal agents for crimes, and while this administration will not do so, these officers could be prosecuted under a future administration.
Further, any person harmed by misconduct of ICE agents can sue ICE for damages for violating their rights. Although certain civil rights claims for abuse of power by the government are not available against ICE, ICE can be sued under the Federal Tort Claims Act (FTCA).
The FTCA waives the federal government’s sovereign immunity so that it can be sued for tort claims “in the same manner and to the same extent as a private individual under like circumstances.” This means that rather than bringing claims for violations of constitutional rights, as one would against local or state law enforcement officers, a plaintiff can bring traditional “tort” claims, such as assault and battery, trespass, false arrest, false imprisonment, intentional infliction of emotional distress and wrongful death.
While there are disadvantages to FTCA claims — there’s no right to a jury trial, for example — these claims are critically important for checking the abuse of power by federal law enforcement. Using the FTCA to give ICE and its agents pause, when they are openly beating and arresting people based solely on the color of their skin or their opposition to ICE’s brutality, could be essential for saving the rule of law.