Colorado’s Democrats are not proposing radical responses to federal agents who disregard the U.S. Constitution.

On the contrary, legislation aimed at holding federal agents accountable to the U.S. Constitution is a smart and measured response to the president’s decision to wield immigration enforcement personnel like a personal police force.

A recently uncovered internal memo from the Department of Human Services makes it clear that federal immigration officials have been told by their superiors to overly aggressively detain individuals, search homes and break into cars and quell protests. All of these actions can be violations of the U.S. Constitution which prohibts wrongful arrest, search and seizure and federal curtailment of free speech.

“Even since spring 2025, the tactics deployed by federal agents are getting more violent, more shocking, more violative of legitimate expectations of people in this country and of the law,” said Rep. Mike Weissman, who is sponsoring one of the bills on immigration. “By the day, it is increasingly urgent that we, at the very least, provide a remedy for that.”

The remedy Weissman and Sen. Julie Gonzales, who is a candidate this fall for U.S. Senate, are proposing is to allow federal agents to be held accountable for their actions in court.

Many may assume this legislation is unnecessary. For example, after former Minneapolis police officer Derek Chauvin was convicted of murdering George Floyd, states around the country rushed to end immunity for police officers. Colorado was among the states that said our law enforcement officials are not above the law — including civil laws that protect people from violations of their constitutional rights.

According to an analysis by The New York Times, the U.S. Supreme Court actually ruled in 1971 that federal agents could be sued for constitutional violations. In Bivens v. Six Unknown Federal Narcotics Agents, the court held that narcotics officers who searched an apartment without probable cause could be sued for damages.

“Having concluded that petitioner’s complaint states a cause of action under the Fourth Amendment … we hold that petitioner is entitled to recover money damages for any injuries he has suffered as a result of the agents’ violation of the Amendment,” Justice William Joseph Brennan wrote in the case, noting that damages from agents acting on behalf of the federal government carry significantly more weight than actions of individual citizens.

More recently, however, courts have abandoned that precedent and have ruled that until Congress acts, federal agents have immunity from their actions. In 2022 the court ruled that it now “appreciates” more the balance between the risk of federal agents not wanting to perform their duties if they could face heavy financial costs in court and the risk of federal agents violating people’s constitutional rights if they are not held accountable. The court ruled in Egbert v. Boule that Congress is the appropriate body to balance those conflicting interests.

People can still sue seeking an injunction on federal actions in court — a remedy that offers no recompense for illegal actions already taken — but officers cannot be held liable for their actions as individuals.

The Denver Post editorial board has long held that private professionals should be held accountable for their negligent or illegal actions in court. Yes, our society has become overly litigous and attorneys abuse the civil court system daily for their own profits.

However, the civil system is also an incredible tool at preventing abuses. We support tort reform but also oppose broad immunity. Frivolous lawsuits are eating up our courts time and harming small businesses and professionals, but legitimate cases needing redress should be able to be brought against federal agents.

Weissman and Gonzales’ Senate Bill 5 would rebalance the situation. It sets a two-year statute of limitation for claims of constitutional violations. However, the bill does single out “immigration enforcement” instead of making it more broad to affect all federal employees. We worry a court would strike down the legislation as holding one type of federal employee to a different standard than others.

The truth is all federal employees should be subject to civil suits when they intentionally and with disregard for the law violate the constitutional rights of Coloradans. For example, if a federal judge were to violate a suspect’s constitutional right to a fair trial through malice or reckless disregard for the law, we would support civil litigation against that judge as one part of redress that could come in addition to a legal appeal of the case.

Because Congress and the courts, as they are wont to do, have abdicated their responsibility in this matter, states must step up and create clarity.

Senate Bill 5 does just that, and will find broader support if it is widened to apply to all federal employees operating in Colorado and not just immigration officials.