Why claims about ICE officers being untouchable under the law are legally wrong and politically dangerous

A civil rights attorney explains that the claims are strategic distortions meant to normalize violence, silence dissent and lower expectations of accountability 

The lie of law officers as legally untouchable is giant middle finger to public, but recognizing that is also the first step toward resistance. image credit: Shutterstock 

In recent weeks, following the killing of René Goode by immigration enforcement officers, Vice President J.D. Vance and a growing chorus of supporters have claimed that Immigration and Customs Enforcement officers operate under “absolute immunity,” framing federal agents as legally untouchable and beyond accountability. The claim has been repeated enough to sound authoritative, but according to constitutional law, it is simply false. That distinction matters, particularly for Black communities and Black girls who already live at the intersection of over-policing, racial profiling and state violence. When powerful officials distort legal doctrines to justify violence, they are not just lying about the law. They are actively reshaping public understanding of who deserves protection and whose lives are considered expendable. 

To unpack what is actually true, I spoke with civil rights attorney Bina Ahmad, a longtime criminal defense lawyer and legal scholar who has spent over two decades litigating cases involving state and federal misconduct. What follows is a reality check rooted in law, not political theater. 

Absolute immunity usually applies to prosecutors, not officers in the field

Despite what politicians are claiming, absolute immunity does not apply to police officers or ICE agents. Absolute immunity is a narrow civil doctrine that primarily shields prosecutors from being sued for actions taken within the scope of their prosecutorial duties. As Ahmad explained, “Absolute immunity is a very strong shield, but it applies to prosecutors, not officers in the field. Even when prosecutors falsify evidence, hide exculpatory material, or knowingly convict someone who is innocent, absolute immunity often prevents civil lawsuits against them.” The doctrine was established by the Supreme Court in cases such as Imbler v. Pachtman.  

The Court justified this sweeping protection by arguing that internal discipline and bar associations would hold prosecutors accountable, a claim that decades of legal practice have proven largely fictional. Ahmad described participating in projects that filed dozens of bar complaints against prosecutors whose misconduct had already been acknowledged by courts. None resulted in public discipline. “That system is opaque, archaic and functionally useless for accountability,” Ahmad said. “Absolute immunity is almost a bulletproof shield.”  

Qualified immunity < absolute immunity   Law enforcement officers, including ICE and Border Patrol agents, are instead covered by qualified immunity in civil cases. Qualified immunity does not mean officers can do anything they want. It means they are protected from civil lawsuits unless they violated a constitutional right that was “clearly established” at the time of the misconduct. This standard was articulated in cases like Harlow v. Fitzgerald. In practice, courts often interpret “clearly established” so narrowly that victims are denied relief unless there is a nearly identical prior case. Ahmad put it plainly as she explained that “Courts often require almost the same facts, the same injuries and the same context before they will say a right was clearly established. That makes accountability incredibly difficult, even when harm is obvious.”  

A "statie" and a fed could commit the same crime but do wildly different time 

ICE officers are federal agents, which adds another barrier. In theory, people can sue federal officers for constitutional violations under what is known as a Bivens claim, originating from Bivens v. Six Unknown Named Agents. In reality, the Supreme Court has severely limited Bivens over the years. Today, it applies in only a handful of very specific factual scenarios, none of which broadly cover excessive force or killings by immigration officers. 

Ahmad described it as “qualified immunity times ten.” “If a state officer and a federal officer commit the same act, the state officer might face civil liability while the federal officer walks away untouched. That is how skewed the system is,” she stated.  

Where Vance and ICE supporters are most misleading is in blurring civil immunity with criminal accountability. Civil immunity doctrines do not prevent criminal prosecution. They never have. “Qualified immunity and absolute immunity are civil doctrines,” Ahmad emphasized. “They do not stop a prosecutor from bringing criminal charges if there is probable cause.”  ICE officers do not have diplomatic immunity. They do not have sovereign immunity for personal criminal acts. If an officer unlawfully kills someone, homicide statutes still apply. The problem is not that prosecution is legally impossible. The problem is that prosecutors are often unwilling to act against agents of the same carceral system they work alongside. 

Absolute immunity isn't even about immunity: it's a warning

The insistence on “absolute immunity” is less about legal accuracy and more about political signaling. It functions as a warning to the public and a promise to officers that violence will be excused. “This kind of language is meant to create confusion and fear,” Ahmad said. “It sends a message that the state will protect its own no matter what.” For Black communities and Black girls, that message lands in a historical context shaped by slave patrols, Jim Crow policing and modern surveillance and deportation regimes that disproportionately harm people of color. When racial profiling is upheld and immunity is exaggerated, the law becomes a weapon rather than a safeguard. 

Understanding immunity doctrines does not mean endorsing them. As Ahmad made clear, the law is not synonymous with justice. “I did not go to law school because I believed the U.S. legal system was just,” she said. “I went to learn the language of power so I could push back against it.”  That clarity matters. Especially now. False claims about immunity are not at all in fact, harmless misunderstandings. They are strategic distortions meant to normalize violence, silence dissent and lower expectations of accountability. Recognizing the lie is the first step toward resisting it.