Law enforcement and Illegal Immigration

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Tootle Talks - July 11, 2025. A Deeper Delve

During last Friday’s discussion, a question was raised by Professor Tootle about whether a federal law enforcement officer is acting illegally when their actions violate the protections afforded to individuals under the US Constitution. The following example was offered: a federal officer can break down an individual’s door, and search the individual’s home, without “acting illegally.” And if the officer’s actions are wrongful, could the officer avoid criminal liability by simply claiming to be mistaken?

The question raises a multitude of initial issues that may need to be either assumed or resolved before an answer can be proposed. For example, whether the officer is acting with reasonable suspicion or probable cause (or neither), whether the place that is broken into is a residence/domicile, and whether the individual is a US citizen or is undocumented, are all questions that may redirect the analysis and impact the answer. But, since this isn’t a law school exam (and this work is not intended as legal advice) we will dispense with those “bunny trails” of analysis and focus on the larger question of whether a law enforcement officer who engages in behavior that any reasonable person would believe to be a violation of a person’s federal constitutional rights, can be charged with a federal crime.

One would assume that the answer is obvious, given the terms of the federal statute, 18 United States Code Section 242. 18 U.S.C. Section 242 provides that “Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States […] shall be fined under this title or imprisoned not more than one year, or both. In simpler terms, when a law enforcement officer violates or deprives any individual of their Constitutional rights while acting pursuant to apparent legal authority, according to the plain wording of the stature, they commit a federal crime.

The above discussion is about criminal law (i.e. fines and jail time). There is also civil law liability (i.e. lawsuits for damages) which is not discussed above. See also 42 U. S. C. § 1983, which provides for a civil cause of action and potentially the recovery of civil penalties for similar behavior as is covered by 18 U.S.C. §242. Section 1983 reads, in part: “Any person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress…”

Turning back to the example that was offered during the Tootle Talks discussion, let’s assume a few facts in order to narrow the inquiry and hopefully provide a clearer understanding. For simplicity, assume it is a federal officer who breaks into the home of a US citizen. The officer thinks that maybe the home contains one or more undocumented persons (i.e. non-citizens without a legal right to remain in the US). For purposes of this discussion, we’ll assume that the officer does not have an arrest or search warrant, isn’t availing themselves of any of the judicially-created doctrines intended to ease law enforcement’s job such as the “hot pursuit” rule, and that the occupant is a law-abiding citizen. Thus, on the surface at least, it would seem that an officer that breaks into the home of a law-abiding citizen without a warrant or legal cause violates the occupant’s Fourth Amendment right against unreasonable searches and seizures (along with other legal and constitutional rights). Since 18 U.S.C. §242 makes it a crime to deprive a protected person of their Constitutional rights, it therefore would seem to follow that the officer also commits a crime under Section 242, right?

Maybe, but probably not.

To understand, we now turn to Prof. Tootle’s assertion that the offending officer could simply claim to be “mistaken” so as to relieve them of criminal liability. In fact, the Supreme Court has addressed that question in many different circumstances over the past eighty-plus years. For example, the qualified immunity doctrine was originally established by the Court to insulate judges from claims levied by unhappy litigants who did not prevail. The qualified immunity doctrine has been expanded over the years to cover other elected officials and members of law enforcement. Here’s how qualified immunity might act to shield the officer from liability: In order to be successfully convicted pursuant to 18 U.S.C. §242, a prosecutor must establish that the officer knew their actions were wrongful and still engaged in those actions. Said another way, the officer must be shown to have known the wrongfulness of their acts. Things like mistake or poor judgment do not rise to the required level of willfulness that is prosecutable under § 242. In fact, the Supreme Court has set the bar really low, saying that the officer’s knowledge and purpose “need not be expressed; it may at times be reasonably inferred from all the circumstances attendant on the act.” (Screws v. U.S, 325 U.S. 91, 106 (1945)).

Thus, a law enforcement officer may be able to escape criminal liability under Section 242 by simply claiming that the officer was mistaken, and/or did not know that the actions they took violated the individual’s constitutional rights. Whether the judge or jury believes that the officer was objectively mistaken, or even determines that the officer, while not mistaken, did not know that breaking into the home was unlawful, will depend on the facts and circumstances provided to the “finder of fact” in that case. However, if the judge or jury do believe the officer lacked awareness of the wrongfulness of their act, then indeed, the officer may be found not guilty of violating 18 U.S.C. §242.

Having discussed the outlines of the basic application of 18 U.S.C. §242, it is worth backing up to look closer at one particular nuance in the wording of the statute. Above, we talked about the aggrieved party as an “individual” or a “person.” Notably, Section 242 does not apply only to citizens; it protects both citizens and non-citizens equally, so long as and to the extent that each is entitled to “rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.” But, the statute does draw a notable distinction applicable to non-citizen aliens. Section 242 makes criminal “different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens.” In other words, non-citizens (including those in the country illegally) as well as people of different races, are all included in and given separate protection under Section 242, and it is notable that the drafters felt the need to expressly refer to those classes of people as needing that protection. In fairness, as a practical matter this separate clause protecting aliens and different races is rarely used by prosecutors because of a combination of difficulty in proof of the required difference in punishments, and because there are other laws offering similar protections that are more readily applied.

Given the above, it probably shocks the conscience for some (or many) who read this, that a federal officer who commits an act that is plainly and clearly unconstitutional may not be guilty of committing a crime. But that is the reality under long-held Supreme Court precedents. The policy reasoning is arguably sound, even if frustrating in many cases. Law enforcement officers must be able to do their jobs effectively for the overall benefit of society. Imposing on them a subjective obligation to determine, in short order and in commonly stressful situations, facts that they cannot know and nuances of law that they do not understand, would unnecessarily impede them in the performance of their duty. Still, that means that we as a society must be willing to forgive (or at least tolerate) the abuse of certain persons’ constitutional rights in limited circumstances, in exchange for increased peace and security. I take no position on whether that is a fair trade, and I’m sure some readers will be shouting at this point that it is not – but for now that is the balancing that the Supreme Court has established. If wrong, it is up to the Congress to rebalance the interests of the people.