ICE agents crash through your door, demanding to search your home for undocumented immigrants. They don’t have a warrant.
The feds grab you off the street and toss you into an infamous, packed holding cell in Baltimore. No judge reviews your arrest.
Homeland Security officers pin you to the ground and shoot you, and say it was because you were carrying your legal, concealed handgun while monitoring their actions. They call you a terrorist.
These things are happening. Federal agents are trampling constitutional protections against unreasonable search, unlawful arrest, cruel and unusual punishment and the right to bear arms.
Federal courts aren’t stopping them.
Two state lawmakers want to hand that job to Maryland judges, adopting an untested legal theory that would hold federal agents accountable in state courts.
“We need to use every tool available to fight back as we see fascists and authoritarians take over our country,” said Del. Lorig Charkoudian, a Democrat from Takoma Park.
She and state Sen. Jeff Waldstreicher each came up with the idea of adopting “converse 1983″ as a shield in troubling times. It’s an idea spreading among blue state legislators and civil rights lawyers nationwide.
“We want folks to have a venue to vindicate their constitutional rights here in Maryland,” said Waldstreicher, a Democrat from Kensington.
Here’s how it would work.
A 1871 federal law known as Section 1983 made it possible to sue state and local officials in federal court to stop them from violating someone’s constitutional rights.
It’s a powerful check on abuse by police and other government agents. But the law left a gap.
When the federal justice system refuses to act, or worse, is part of the abuse, there is nowhere to turn for judicial protection. converse 1983 could provide it.
The idea was laid out in a 1987 law review article by Yale University professor Akhil Reed Amar. He argued that there’s nothing in the Constitution barring states from providing an avenue for corrective action against federal officials.
The Constitution explicitly states that powers not reserved for the federal government stay with the states, so state legislatures theoretically can give state courts jurisdiction that doesn’t take power from the feds.
Amar will testify Tuesday on Waldstreicher’s bill before the Senate Judiciary Committee.
“It is not usurping any federal power,” Waldstreicher said. “The federal government already has, through [Section] 1983, a venue for which to hold state officials accountable when they violate constitutional rights.
“But there is no such venue for Maryland residents to vindicate their constitutional rights in state court against federal officials. This bill simply provides that right.”
This is timely because of President Donald Trump’s ongoing goal of purging 1 million immigrants. Some of the constitutional violations I described are already happening in Maryland.
Given recent news about the Trump administration seeking massive detention space in Howard and Washington counties, the worst abuses on display elsewhere seem assured to be repeated in Maryland.
A few states already have adopted laws based on converse 1983: California, Maine, Massachusetts and New Jersey. They’re very broad and haven’t been tested in this climate.
In December, Illinois passed a law specifically mentioning ICE and its tactics. Trump’s Justice Department sued in federal court, arguing that allowing civil rights lawsuits against U.S. agents in state courts violates the supremacy clause.
That’s the constitutional principle that makes federal law supreme, intended to keep states from refusing to enforce or from blocking national laws.
The Maryland lawmakers argue their proposal won’t violate that principle because it doesn’t take the power to review civil rights violations from the federal government. It expands it to the state.
And because the Maryland bill focuses on corrective action rather than damages — creating a state legal precedent that certain federal conduct violates the Constitution — it doesn’t tangle with another key federal principle, qualified immunity.
“We don’t upset the applecart when it comes to federal officials acting within their federal duties,” Waldstreicher said. “The bill makes clear that qualified immunity is not undone by this legislation.”
While the bill is a response to this moment, it would open the door to lawsuits claiming any sort of constitutional violations.
If a future president wants to enact gun safety measures, Maryland residents could challenge them in state court as a violation of their Second Amendment freedoms.
Multiply that by 50 states with divergent views on which constitutional rights are most important, and it’s not hard to imagine converse 1983 making it even harder to get anything done as a nation.
Waldstreicher isn’t bothered by the concern. He said the constitutional amendment-neutral language in the law should attract support from conservatives and libertarians.
More protection of freedoms is a good thing, even if there are frivolous lawsuits.
“Our state courts are already designed to quickly dispose of and dismiss frivolous litigation,” he said. “This bill won’t change that.”
Charkoudian, whose House Bill 332 has yet to get a hearing date, expects amendments on whichever measure moves forward.
Some of those could come out of the federal challenge in Illinois or from other states as they pursue similar measures to control ICE agents with their own ideas. Connecticut, New York and Virginia are all expected to introduce the concept.
“This doesn’t interfere with lawful enforcement or public safety. It simply affirms a core truth: Power does not justify abuse,” New York Gov. Kathy Hochul said in her State of the State address last month.
Whether this would survive a likely court challenge by the U.S. Justice Department is unclear. A federal judge could rule that such complaints don’t belong in state courts.
“There is a significant risk that a reviewing federal court may determine that the proposed Act would be preempted under federal law,” the Maryland Attorney General’s Office wrote to Charkoudian on Jan. 8.
Converse 1983 is part of a broader effort to restrain the Trump administration.
If the idea survives, it could be the one with consequences that stretch far beyond the current crisis.
This column has been updated to correct the date Section 1983 was adopted.
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