NYers Must Have Right to Sue Officials Violating US Constitution

A pillar of our constitutional architecture is the principle espoused in Marbury v. Madison: Rights without remedies are meaningless. If the US Constitution and its protections are to mean anything, victims of unconstitutional actions must have avenues to vindicate their rights.

Without such pathways, those who wish to trample on those rights not only will prevail in denying individuals the protections afforded by the law of the land. They also will succeed in corroding the infrastructure of our republic. We all bear the responsibility, heavy as it is, to block such trampling.

I have introduced the New York Civil Rights Act, an amendment to our state civil rights law, that provides victims of constitutional violations by any federal, state, or local official acting under the color of law, a cause of action in state or federal court against that individual for damages.

This is not a new idea or practice. Since the founding of the country, state tort laws have served as proper mechanisms for enforcing federal constitutional rights. California, Massachusetts, Maine, and New Jersey have similar laws on the books, but New York has never tried this approach legislatively.

State laws are needed more than ever following a string of US Supreme Court rulings.

Since 1971, when federal officials violated citizens’ constitutional rights, courts could use Bivens v. Six Unknown Named Agents to entertain causes of action to vindicate these rights with remedial measures, including damages.

But several US Supreme Court decisions—namely, Ziglar v. Abbasi and Hernandez v. Mesa in 2017, and Egbert v. Boule in 2022—have confined Bivens to the precise facts of that case.

In Boule, for example, the high court stated that “creating a cause of action is a legislative endeavor,” while restricting victims of constitutional overreach to Congress’s last meaningful action on this front, the Westfall Act.

Westfall had amended the Federal Tort Claims Act and made it the exclusive remedy for “injury or loss of property, or personal injury or death arising or resulting from the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.”

The narrowing of Bivens and provisions in the Westfall Act appear to leave victims of constitutional violations without meaningful remedy at a time where such violations seem rampant. This ranges from indiscriminate Immigration and Customs Enforcement presence and enforcement to federal occupation of (and budgetary retaliation against) cities with different political orientations than the current administration.

It should disturb hardened partisans and politically unaffiliated individuals alike. Today, your world view may align with a regime prone to overreach that violates constitutional rights; tomorrow, that overreach may very well visit your doorstep under a different regime and rob you of your own constitutional protection.

Luckily, both precedent and current federal statutes present another way forward.

Legal scholars have argued for decades that history provides some basis for state causes of action. One basis is a state analog to the federal cause of action that provides relief against state officers for violations of federal constitutional rights.

The other basis lies in the plain reading of the Westfall Act, which explicitly carves out from the Federal Tort Claims Act’s exclusive purview “a civil action against an employee of the Government which is brought for a violation of the Constitution of the United States.”

There is no subsequent qualifying language, and with good reason. The US Constitution is the supreme law of the land, and anyone, including government officials, who violates that law should be held accountable.

A New York statute that upholds the Constitution’s supremacy and enforces its protections neither offends federal sovereignty nor discriminates against federal officials. In fact, it does the opposite: It provides remedies for violations of the federal constitution when federal courts have stepped away from creating those common-law remedies.

The New York Civil Rights Act is an exact example of the type of cause of action suggested by the Supreme Court in Boule: a legislative endeavor.

It’s now time for the New York Legislature to act. We must convene a special session to pass this bill and others, such as the New York for All Act, that would advance needed protections in the current climate.

The Trump administration, buoyed by recent court orders permitting potentially unconstitutional actions to continue as appeals are decided, appears determined to push the boundaries of our constitution to its breaking point and potentially beyond repair. Aggressive Department of Justice investigations also are posing grave threats to the foundations of our republic.

I have observed examples of these encroachments up close in immigration court. I’ve heard from scores of constituents. And like many of us, I have watched these actions play out across the country.

History demands that we not stand idly by and watch. We must act. Our constitution provides the tools to do so. By enacting the New York Civil Rights Act, we can demonstrate our commitment to using them.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

New York State Senator Zellnor Myrie (D-Brooklyn) is chairman of the Codes Committee.

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