How have Supreme Court decisions since 2020 affected the ability to sue ICE agents for unlawful arrests or use of force?
Executive summary
The Supreme Court since 2020 has sharply narrowed private lawsuits against federal officers, including ICE agents, by eviscerating Bivens remedies and steering many claims into statutory channels like the Federal Tort Claims Act (FTCA), while simultaneously leaving qualified-immunity protections intact in many cases [1] [2] [3]. Landmark decisions—most notably Hernández v. Mesa and Egbert v. Boule —and the Court’s more recent treatment of the FTCA in Martin v. United States have combined to make it significantly harder to sue ICE agents for unlawful arrests or excessive force [2] [4] [5] [3].
1. The Bivens line: the door quietly closing on constitutional damages
The Bivens cause of action, established in 1971 to allow damages suits against individual federal officers, has been systematically restricted by the Roberts Court, which in post-2020 rulings like Hernández v. Mesa and Egbert v. Boule declined to extend Bivens to new contexts and emphasized that courts should defer to Congress on creating damages remedies—an approach that the scholarly and advocacy press says has “eviscerated” Bivens for plaintiffs seeking redress against immigration or border agents [1] [2] [4].
2. Egbert v. Boule and the national-security/special-factors carve-out
In Egbert , the Court refused to allow a suit against a Border Patrol agent for alleged excessive force, with the majority framing immigration and border enforcement as contexts where “special factors” counsel against judicially created damages remedies; commentators warn the logic is easily translatable to ICE enforcement more broadly, meaning plaintiffs injured by ICE confront an uphill doctrinal battle to bring Bivens claims [4] [2].
3. Martin v. United States and the FTCA’s narrowed path
The Martin decision clarified the Federal Tort Claims Act is the “exclusive remedy” for damages against federal employees in many contexts and signaled skepticism about broad use of law‑enforcement provisos that plaintiffs had hoped would preserve individual suits—an outcome that pushes many claims into the FTCA’s statutory framework, where sovereign-immunity hurdles and exceptions (like the discretionary-function exception) can still block recovery [3] [5].
4. Qualified immunity and the practical effect on discovery and accountability
Even where a Bivens claim survives, qualified immunity remains a formidable barrier: plaintiffs must show a clearly established constitutional violation, a standard commentators note has left “virtually no way” to sue individual federal officers for damages in many cases and can prevent development of precedent that would help future victims [1]. The consequence is not only fewer verdicts for plaintiffs but also less discovery and public airing of agency practices—an effect noted in reporting about ICE incidents that only became visible because of litigation [1].
5. Circuit splits, the Eleventh Circuit, and judicial nudges
Although several circuits had resisted broad immunity for federal officers, Martin’s language—urging careful reexamination of exceptions like the discretionary-function exception—offers litigants a tactical opening in some jurisdictions; advocates expect lower courts such as the Eleventh Circuit to revisit outlier positions, but the Supreme Court stopped short of a clear directive, leaving uneven access to remedies across circuits [5].
6. Alternative pathways, prosecutorial options, and limits of the record
State criminal prosecutions of federal officers remain possible in principle—the Supreme Court has stated federal status does not automatically bar state prosecution—but in practice supremacy-clause arguments and political dynamics have at times led to dropped charges or dismissals, and federal immunity doctrines complicate civil routes as well [6]. Reporting and litigation trackers show ongoing civil suits and class actions against ICE practices, but the post-2020 doctrinal landscape makes many of those suits harder to win or even to litigate to discovery [7] [8].
7. Bottom line: accountability narrowed but not extinguished
Collectively, recent Supreme Court decisions since 2020 have narrowed judicially created damage remedies against federal officers, channeled many claims into the FTCA with its procedural barriers, and left qualified immunity intact as a practical impediment—meaning victims of unlawful ICE arrests or force face higher legal hurdles and less certainty of redress, even as statutory and state-law avenues remain imperfectly available and unevenly applied across jurisdictions [1] [3] [5].