Question here for lawyers in the know - can ICE/the government be sued for wrongful arrest, injuries sustained (including intentional infliction of emotional distress), and/or damaged property (broken doors and windows, smashed cars, etc.)? Shouldn't the government's criminal defense fund be drained for ICE's criminal rampage and blatant thuggery?
Yes, Federal Tort Claims Act is in theory applicable. But whether or not these victims in particular can sue is an open question. Don't worry, the Supreme Court is on it. From June:
No, seriously, this was a unanimous opinion. So the Supreme Court reaffirmed that federal law enforcement actions can be compensated in tort. There are other hurdles, but at least this protection doesn't seem to be falling yet. BTW, the statute and that opinion in particular are mind-boggling intricate and full of triple or quadruple negative logic: i.e. you can do this, except in this situation you can't, except in this sub-situation you can, except in this sub-sub-situation maybe not. I would not recommend it to anyone to read. Fuck, even I got halfway through and gave up. Bottom line: you can still sue the cops.
BUT BUT BUT: the carveout from intentional tort immunity only applies to federal law enforcement officers. It does not appear to apply to the National Guard, the military or any other similar organization. Circumstances of deployment might affect that, but here's my reading of the statute:
1. If ICE smashes down your door, you can sue
2. If the National Guard smashes down your door, you cannot sue
3. If the National Guard purports to arrest you, then you can sue
4. If the National Guard just shoots you, you cannot sue. Or if the National Guard curb stomps you, beats you up, abducts you, etc.
This is a very preliminary analysis. It's possible that other sections of the statute would affect this analysis, but I somewhat doubt it. There's only an exception for law enforcement and not the military because Congress assumed the military wasn't going to be involved in law enforcement (i.e. Posse Comitatus Act). But if the military IS involved because courts are chickenshit, then as long as the military is not given the official power to seize or arrest, they can do what they want with no repercussions. That is, the official has to be "empowered by law" to make search, seize or arrest.
It absolutely could happen that the Supreme Court will simultaneously hold: 1) the president has implied executive authority to deploy the military, or in the alternative, the circumstances justify it (taking account of deference to the president's determinations); 2) the military has not been given law enforcement power; and 3) thus, the military can fuck people up and they cannot sue, so long as they do it intentionally.
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