Accountability for Federal Officers
Minnesota lawmakers are exploring legislation to allow individuals to sue federal officers for civil rights violations. New Jersey may already allow it.
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The developments in Minneapolis are beyond disturbing.
Since December 2025, the federal government has conducted Operation Metro Surge, “an ongoing enforcement effort that has led to an unprecedented increase in federal law enforcement presence to enforce immigration laws in Minnesota.” Press reports and social media are filled with story and story of tactics that depict, at best, wholly unprofessional conduct and, at worst, unconstitutional conduct. A U.S. District Court judge in Minneapolis has already concluded that federal officers acted illegally and ordered them to follow the law - an order that seems shocking yet self-evident at the same time.
The horrific shooting death of Renee Good in Minneapolis on January 7, 2026, acted as a crescendo. Since then, the federal government has announced that a surge of federal officers will arrive in Minneapolis, a city with a population of less than 500,000 and a police force of around 500. It has also dangled the possibility of active-duty troops and floated an invocation of the Insurrection Act. State and local officials are demanding that the federal government lower the temperature and withdraw the federal deployment.
With so many individuals alleging that federal agents violated their civil rights, the question of available civil remedies is now top of mind.1 Ordinarily, if state or local police officers engaged in misconduct, whether it be excessive use of force or a false arrest, the answer would be easy. Longstanding federal law in place since the end of the Civil War allows victims to bring a civil lawsuit against police officers for money damages. They could even ask for an order to prevent the misconduct from happening again. Cases under that federal law (42 U.S.C. 1983) are quite routine in our nation’s judicial system. I’ve handled many Section 1983 cases during my time as a litigator defending state officials and state law enforcement.
The same, however, cannot be said for federal officers. Congress never enacted a law that would act as the counterpart to Section 1983 for federal officers. In addressing this glaring gap, the U.S. Supreme Court in Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), permitted a civil lawsuit to proceed against federal agents for Fourth Amendment violations. Since then, through a series of cases over the years, the Court significantly scaled back the availability of a Bivens remedy. So much so that now, Dean Erwin Chemerinsky and Professor Emeritus Burt Neuborne described in a recent NY Times essay that since 1980:
Not once...has it allowed Bivens suits (as they came to be known) to go forward. In case after case, the court has precluded people whose rights have been violated from suing even when they suffered great injuries.
In their piece, Dean Chemerinsky and Professor Neuborne called for federal legislation - a “Renee Good Civil Rights Act” - to close this hole in federal law.
Unquestionably a worthy goal, but forgive me if I don’t hold my breath for Congress to act.
Without Congressional action, states will likely try to fill the vacuum. Protect Democracy, a nonpartisan advocacy group, is promoting the Universal Constitutional Remedies Act, a model state law that would be the Section 1983 counterpart to apply against federal officers. Lawmakers in Minnesota are introducing state legislation to allow individuals to bring lawsuits against federal officers for constitutional violations.
These efforts beg the question: could a state do such a thing...create a state mechanism to allow an individual to bring a civil lawsuit against a federal officer for federal constitutional violations? Admittedly, it’s an odd proposition, especially for those of us schooled in the idea that the states and the federal government are separate sovereigns with their own realms and the Supremacy Clause of the U.S. Constitution acts as the enforcer whenever the states and the federal government get in each other’s way. Spoiler alert: under the Supremacy Clause, the federal government often wins.
But on reflection, the argument in support of such a legal avenue appears quite plausible. Not only that, in New Jersey, a strong argument exists that the New Jersey Civil Rights Act, the counterpart to Section 1983, may already permit a civil rights lawsuit against a federal officer to proceed in the state.
Protect Democracy details the argument in favor nicely. I won’t belabor their analysis here, but I’ll highlight a few points from Professor Akhil Reed Amar’s article from 1987(!). He starts with the observation that “true sovereignty in our system lies only in the People of the United States” and that all governments in the United States are “necessarily limited.” From there, Professor Amar sets the table where “federalism cuts both ways” and makes the case that a state law counterpart to Section 1983 for federal officers is not only good policy, it is a permissible exercise of state power. After all, why would we as a Nation ever countenance a scenario that a federal officer would somehow be able to escape accountability when it comes to violations of the federal constitution?
Whether intentional or not, New Jersey may have heeded Professor Amar’s call. In 2004, the state enacted the New Jersey Civil Rights Act (NJCRA),2 a statute that was designed to be an “analog” to Section 1983. It allows for an individual to bring a civil lawsuit against anyone “acting under color of law” for a violation of any “substantive” rights under the United States or New Jersey constitutions. Contrast the language in the NJCRA with that found in Section 1983, which permits lawsuits against anyone acting under “color of [law] of any State” (my emphasis) for violations of federal constitutional rights.3
The difference is consequential. Unlike Section 1983, which is limited to state officials (i.e., acting under color of state law), the NJCRA has no such limitation (i.e., “acting under color of law”). Under the NJCRA’s plain language, a plaintiff can make a plausible case that a federal officer may personally be held liable under the NJCRA for federal constitutional violations4 that occur in New Jersey. A plaintiff can further argue that because of the NJCRA’s broad remedial purposes, New Jersey’s choice to exclude any reference to a person acting under color of state law to simply “acting under color of law” was an intentional one and designed to reach all unconstitutional acts that occur within the borders of New Jersey, whether conducted by local, state, or federal officers. In other words, the plain language of the NJCRA, coupled with the legislative intent to cover “potential gaps in remedies,” may dictate that federal officers fall well within its ambit.5
A plaintiff in New Jersey could test the waters. The endeavor, however, may not have a guarantee of ultimate success. A number of obstacles would likely arise. If filed in a state court in New Jersey, the federal officer may seek to move the case to federal court. Further, the federal officer may seek to dismiss the case claiming an immunity from suit or ask for an outright dismissal under some type of Supremacy Clause theory. In short, many possibilities exist to slow down or completely discard such a lawsuit.
But recent events in Minneapolis and elsewhere demonstrate a strong desire from the public for an accountability structure. When faith is lost in the ordinary institutions of the government to pursue justice (however imperfect it may be), the people will look for alternatives. Today, the states are an attractive, alternative forum to reassert the Nation’s principles of a constitutional republic.
Any criminal prosecution is far from certain. The U.S. Department of Justice has ceased cooperation with its Minnesota counterparts. And the prospect of federal prosecutions is questionable.
The following is the relevant text of the statute. For purposes of this article, I’m focusing only on the provision of the Act that authorizes a private cause of action:
Any person who has been deprived of any substantive due process or equal protection rights, privileges or immunities secured by the Constitution or laws of the United States, or any substantive rights, privileges or immunities secured by the Constitution or laws of this State, or whose exercise or enjoyment of those substantive rights, privileges or immunities has been interfered with or attempted to be interfered with, by threats, intimidation or coercion by a person acting under color of law, may bring a civil action for damages and for injunctive or other appropriate relief. The penalty provided in subsection e. of this section shall be applicable to a violation of this subsection.
N.J.S.A. 10:6-2c.
In this article, I won’t delve deeply into the meaning behind the phrase “under color of law” for purposes of the NJCRA and Section 1983. For our purposes here, it’s simply a standard to determine whether the misconduct of the individual can be attributable to the government. In other words, “when the person is exercising the authority given to them by the government and the action is taken with the appearance that the government authorized it, even if they are abusing that authority.”
Federal officers are subject to the prohibitions of the U.S. Constitution. They would unlikely be subject to state constitutions absent unusual circumstances (like some type of cross-deputizing between jurisdictions or an affirmative grant of state authority to a federal officer).
Thus far, I have not discovered any court cases that dived into this scenario of federal officer civil liability under the NJCRA. I found, however, two federal district court cases that stand for the opposite proposition (that is, the NJCRA does not allow for a lawsuit against a federal officer). But I do not find them persuasive at all.
The cases fail to meaningfully analyze the question. The entirety of the “analysis” rests on the following single sentence from one case: “Section 1983 and the NJCRA both enable a plaintiff to bring a civil action only against a ‘person’ who causes a deprivation of federal and state constitutional rights under the color of state law” (my emphasis). That’s it. No references to legislative history of the NJCRA, other court decisions, or other legal scholarship. The second case that I found merely cites and quotes to the first case without any additional analysis.
If anyone can find additional cases on this question, I’m happy to be corrected.