Legal Corner: Harming municipal officials in the effort to hold federal agents liable

The 2026 legislative session saw the defeat of two bills aimed at imposing liability on federal agents for violations of federal constitutional rights. One bill died in a legislative committee; Gov. Jared Polis vetoed the other. The bills were motivated by federal immigration enforcement action and the deaths and injuries of protestors at the hands of federal agents. CML took no position on one bill, but opposed another — not because of the policy reasons, but because its collateral consequences for municipal officials outweighed the slim chance that courts would uphold the policy. 

These bills — based on a theory called “Universal Constitutional Remedies” or “Converse 1983” — were extraordinarily suspect and likely to be invalidated, especially given the current makeup of the U.S. Supreme Court. As one legal academic has noted, a “converse-1983 action is not a promising way for the states to check constitutional abuses by federal officers.” John F. Preis, “The False Promise of the Converse-1983 Action, 87 Ind. L.J. 1697 (2012).  

But why would municipalities be concerned about laws seeking to protect people from federal agents who otherwise have no accountability? The problem lies in the overbroad details of the legislation that ignored the effects on Colorado public servants and the underlying theory that more lawsuits, more attorney fees, and more judgments – all paid from public funds — would modify federal behavior and create the justice that proponents sought.

  

Two bills with different approaches and similar defects 

Federal actors are not subject to the same civil liability for actions that violate individual constitutional rights. “Section 1983” (42 U.S.C. § 1983) applies only to state and local officials. A judicial theory of liability for federal agents (called a Bivens action) has extremely limited scope. The Federal Tort Claims Act (28 U.S.C. § 2671 et seq.) creates a narrow and complicated path to raise claims against federal actors for their negligent or wrongful actions.  

With limited federal remedies and an apparent lack of accountability, Colorado legislators sought to respond to constituent concerns by creating a remedy in state law. Gov. Polis vetoed SB26-005 (“Rights Violation in Immigration Enforcement Remedy”), which would have created a claim against any person who violated another person’s rights guaranteed under the United States Constitution when “acting under color of any federal, state, or local law” while participating in civil immigration enforcement. The bill would have restricted statutory and common law immunities.  

Another bill that the governor preferred and that CML opposed was offered late in the session but was defeated in its first committee. SB26-176 (“State Remedies for Constitutional Rights Violation” a/k/a the “No Kings Act”) also protected rights under the United States Constitution but without the limitation to the civil immigration enforcement context. The bill largely duplicated Section 1983’s language but removed the federal law’s limitation to state and local officials. The bill would have allowed a defense of absolute or qualified immunity (unlike the liability proposed under SB26-005 or existing Colorado law allowing claims against peace officers for violations of rights under the Colorado Constitution).  

But can’t public officials already be sued for unconstitutional acts? 

Whether state law claims can proceed against federal actors is hardly a municipal issue. And municipal officials, from police to elected officials and beyond, are subject to liability for federal constitutional violations as explained in the Legal Corner on Oct. 14, 2025, and in the CIRSA/CML Ethics, Liability & Best Practices Handbook.  

At first glance, SB176 may appear to simply add federal agents to Section 1983, which already applied to state and local officials (in addition to the more expansive liability for peace officers under Colorado law). The same rights were protected. The same immunities would have been preserved. Lawsuits likely could proceed in federal or state courts. The claims were simply grounded in state law.  

So why would CML and other local governments oppose the bill if their constituents already could be sued under similar theories? Because the bill could not guarantee that courts would treat state law claims under SB176 the same as federal law claims under Section 1983 in every respect that matters. The defense of a Section 1983 claim is substantively and procedurally complex and goes far beyond questions of immunity, as CML explained to the General Assembly. 

Gov. Polis and some of SB176’s proponents unfairly cast all local government opposition as hyperbolic and misleading. Reasonable objections were dismissed by the unreasonably optimistic suggestion that courts would simply apply federal law to all questions (despite the lack of a statutory mandate that they do so). As any attorney who has litigated any vague or ambiguous statute knows, that optimism is entirely unwarranted and only guaranteed years — perhaps decades — of expensive litigation and uncertainty for public servants. 

The empty protection of the “No Kings Act”  

The “No Kings Act” — clearly directed at federal actors and the current presidential administration’s practices — relied on a novel and untested theory that state law can create liability for federal actors. Whether called a “Universal Constitutional Remedies Act” or “Converse 1983” law, the theory has existed primarily in legal academic settings for decades. Several states — California, Massachusetts, Maine, and New Jersey, and recently Connecticut, Maryland, and Vermont — have enacted laws based on the theory (frequently more broadly looping in state constitutional and statutory rights), while others are considering similar legislation.  

The problem with these examples is that no court seems to have answered the most critical question — whether the U.S. Constitution allows states to impose liability on federal actors. If it does, then Colorado courts and local actors must deal with the ambiguities in the law on top of Section 1983 and (for peace officers) SB20-217’s liability provisions. Moreover, the potential liability could apply to federal actors beyond the immigration context across federal agencies and likely inhibit federal activity beyond immigration that benefits Colorado.  

If the liability theory is not viable, however, then the law and all its uncertainty remains, but as to local public servants.  For local governments, sending a message to the federal government through a vague statute that won’t address the root cause of a problem is both impractical and dangerous. Coloradans will have false hope and expectations that they can seek remedies against federal actors. The political message is sent at the statehouse, but none of the problems targeted by the proponents are solved. On the ground in local communities, the problems would persist. The law would heap more costs on the ever-mounting costs of litigation, insurance premiums, and liability added to local public budgets in recent years. 

Gov. Polis’ veto message for SB005 suggested that “local governments and political subdivisions should be willing to learn from the experience of those states where these issues have been and are being debated.” That condescension ignores the clear deficiencies of the legislation and the uncertainty that these laws face. It also ignores the compromises made in other states to address reasonable concerns and the importance of collaborating with those affected directly by a proposed law. 

We don’t know whether the bills will return next year or what their fate will be with a new General Assembly and governor. If they do, hopefully proponents will not blindly ignore obvious failings in their proposals and account for legitimate objections raised by municipalities.

This column is not intended and should not be taken as legal advice. Municipal officials are always encouraged to consult with their own attorneys.