Under the newly enacted PROTECT Act and the Massachusetts Civil Rights Act, federal immigration officers can be sued for damages if they deprive people in the commonwealth of rights protected by the federal Constitution. These lawsuits may provide compensation to victims while deterring federal immigration officers from violating the Constitution.

The PROTECT Act (Promoting Rule of Law, Oversight, Trust, and Equal Constitutional Treatment) and the MCRA potentially reopen doors the Supreme Court has closed to constitutional claims against Immigration and Customs Enforcement and Customs and Border Protection officers.

Massachusetts plaintiffs have at least four conceivable pathways to recover money damages when ICE or CBP officers violate their rights under the federal Constitution:

1) Bivens actions;

2) claims under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680;

3) remedies provided by the MCRA, G.L.c. 12, §§11H-11I; and

4) remedies provided by the Massachusetts PROTECT Act, G.L.c. 12, §11I (5/6).

‘Bivens’ actions

Bivens actions against ICE or CBP officers, while theoretically possible, are dead on arrival for all practical purposes.

A Bivens action seeks damages from a federal officer in their individual capacity for violating the plaintiff’s federal constitutional rights. Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).

Since the Supreme Court decided Bivens, it has sharply limited the availability of Bivens actions. The court has repeatedly said that extending Bivens actions to new contexts, such as immigration-related cases, is “disfavored judicial activity.”

Egbert v. Boule, 596 U.S. 482 (2022), is particularly ominous for Bivens actions against immigration officers. In Egbert, the Supreme Court rejected both a Fourth Amendment excessive force claim and a First Amendment retaliation claim against a Border Patrol officer.

The court’s recent decisions signal a complete, or nearly complete, rollback of Bivens as a practical remedy against ICE or CBP officers.

FTCA claims

The FTCA partially waives federal sovereign immunity. It promises a compensatory damages remedy directly against the United States in cases involving negligence and for six intentional torts that often coincide with violations of the federal Constitution. Although the FTCA generally excludes intentional torts, it authorizes claims for false arrest, false imprisonment, malicious prosecution, abuse of process, and assault and battery against “investigative or law enforcement officer[s] of the United States.” 28 U.S.C. §2680(h). This is known as the “law-enforcement proviso.”

ICE and CBP officers generally qualify as investigative or law enforcement officers of the United States under §2680(h). Torts committed by ICE and CBP officers that fall under the FTCA’s law-enforcement proviso often simultaneously violate the Fourth Amendment’s protections against unreasonable seizures and excessive force, the Fifth Amendment’s guarantees of due process and equal protection, and, when enforcement is in retaliation for protected speech, the First Amendment.

Behind its promise of compensation, the FTCA has a formidable array of exceptions, limitations, obstacles and traps. Its numerous statutory exceptions include the discretionary function exception. 28 U.S.C. §2680. Under this exception, the U.S. retains its sovereign immunity for claims based on discretionary governmental decisions, especially those involving policy judgments. In cases involving ICE and CBP officers, the government is often able to dispute whether decisions underlying particular acts or omissions fall within this exception.

The FTCA requires claimants to present claims in writing to the appropriate agency within two years after the claim accrues. 28 U.S.C. §2401(b). Defenses can be based on the timing, specificity or scope of administrative claims. After an agency mails a final denial, suit generally must be filed in federal District Court within six months.

Recovery under the FTCA is limited to compensatory damages. Punitive damages and prejudgment interest are unavailable. If they prevail, plaintiffs are not entitled to their reasonable attorneys’ fees incurred in bringing the action.

Because FTCA claims are tried to the court rather than a jury, judicial assignment can be decisive. Where the governing law leaves substantial room for interpretation, a plaintiff assigned to a judge who takes a particularly restrictive view of FTCA liability may face a markedly different litigation environment from a plaintiff whose case is assigned elsewhere.

A plaintiff’s prospects can therefore depend on the luck of the draw.

MCRA and New PROTECT Act

When ICE or CBP officers violate the U.S. Constitution by means of threats, intimidation or coercion, the MCRA provides a promising pathway for victims to recover compensatory damages, prejudgment interest, costs and attorneys’ fees.

Because the MCRA applies to “any person or persons, whether or not acting under color of law,” its text contains no express exemption for federal officers. G.L.c. 12, §§11H-11I. Whether that textual breadth permits damages actions against ICE and CBP officers individually remains largely unresolved.

A MCRA plaintiff must show interference, by threats, intimidation or coercion, with rights secured by federal or state law, resulting in injury. Bally v. Northeastern University, 403 Mass. 713 (1989).

In cases involving unlawful arrests, illegally prolonged detention, excessive force, unreasonable physical restraints, and warrantless entry into homes or vehicles by ICE or CBP officers, such conduct may satisfy the MCRA where the constitutional interference itself is accompanied by the requisite threats, intimidation or coercion.

When victims are threatened, intimidated, arrested or assaulted by immigration officials, such conduct may also support a MCRA claim when done in retaliation for peacefully protesting, observing, photographing or recording ICE or CBP activities.

The MCRA differs from the FTCA in other important ways. MCRA damages claims are ordinarily tried before juries. The MCRA has a three-year statute of limitations, compared to the two-year requirement to present an administrative claim under the FTCA.

Furthermore, the Supreme Judicial Court has ruled that some MCRA claims are foreclosed by qualified immunity.

The PROTECT Act establishes a right to sue for redress by providing for the liability of “every person who, under color of any statute, ordinance, regulation, custom or usage of any state, territory, the District of Columbia or the United States, subjects or causes to be subjected any citizen of the commonwealth or other person within the jurisdiction thereof to the deprivation of any rights, privileges or immunities secured by the Constitution of the United States.” (emphasis supplied) G.L.c. 12, §11I 5/6(a).

Because it does not require proof that violations were accomplished by threats, intimidation or coercion, the PROTECT Act applies to a broader array of claims against government officials than the MCRA. Like the MCRA, the PROTECT Act likely permits compensatory damages and prejudgment interest, with damages claims triable to a jury.

The PROTECT Act tracks the text of 42 U.S.C. §1983 almost verbatim. Critically, it inserts the four words “or the United States” into the provision describing the law under which a defendant may act. G.L.c. 12, §11I 5/6(a); 42 U.S.C. §1983.

With just four added words, the Massachusetts Legislature transformed the §1983 model for holding state officials accountable for constitutional violations into a state law remedy reaching federal officials for the same misconduct. This language potentially fills a void created by the rollback of Bivens and congressional inaction.

As the PROTECT Act was just enacted on Aug. 5, 2026, its use against federal officials is entirely untested.

A substantial argument can be made that punitive damages are available under the PROTECT Act. Section 1983 permits punitive damages against individual defendants whose conduct satisfies the standard articulated in Smith v. Wade, 461 U.S. 30, 35-36, 56 (1983). Because the PROTECT Act closely tracks §1983 and expressly incorporates §1983 defenses, plaintiffs can argue that the Legislature intended the new cause of action to provide the same remedies as are available under §1983.

This would represent an expansion of the remedies available under Massachusetts law for constitutional violations by federal, state and local officials. Whether courts will accept this argument remains to be decided.

Plaintiffs litigating individual capacity MCRA or PROTECT Act claims against federal officers are likely to confront the Westfall Act and invoke its constitutional rights exception. 28 U.S.C. §2679.

The Westfall Act generally makes the FTCA the exclusive remedy for torts committed by federal employees acting within the scope of their employment. The act’s constitutional rights exception provides that exclusivity does not extend or apply to a civil action against an employee of the Government “which is brought for a violation of the Constitution of the United States. …” 28 U.S.C. §2679(b)(2)(A).

ICE or CBP officers sued under the MCRA or the PROTECT Act will probably argue that the MCRA and the PROTECT Act are state law causes of action, not actions brought for violations of the federal Constitution. However, the MCRA creates no substantive rights of its own; it instead provides a remedy for interference with rights secured elsewhere. Hobson v. McLean Hosp. Corp., 402 Mass. 413, 418 n.6 (1988).

The same reasoning applies with considerable force to the PROTECT Act. Neither the 1st Circuit nor the Supreme Court has ruled on the application of the Westfall Act to either the MCRA or PROTECT Act in this context. Some courts considering analogous state civil rights statutes have rejected the argument that claims under these statutes fall within the constitutional rights exception. See Henry v. Essex County, 113 F.4th 355, 364 & n.7 (3d Cir. 2024).

Nonetheless, there are substantial textual, constitutional and historical grounds to argue that MCRA and PROTECT Act claims based on federal constitutional violations fall within the Westfall Act’s constitutional rights exception. 28 U.S.C. §2679(b)(2)(A).

Will courts permit these state remedies?

Plaintiffs will argue that, based on principles of federalism, the MCRA and PROTECT Act are designed to vindicate rights guaranteed by the federal Constitution and are lawful checks on unconstitutional conduct by federal officials.

Federal defendants will invoke the Supremacy Clause, intergovernmental immunity, the Westfall Act and other defenses.

Massachusetts has created new doors to replace those that were closed under Bivens. Will the courts allow Massachusetts plaintiffs to walk through them?

J. Whitfield Larrabee practices civil rights law in Brookline.