Executive Summary
This thought-piece addresses a constitutional crisis that is being consistently mischaracterized in public discourse. What is unfolding across the United States in 2025–2026 is not a border-security dispute, nor a disagreement over immigration policy preferences. It is a structural confrontation over whether executive agencies may exercise domestic police power deep inside the interior of the United States without judicial process, without transparent identification, and without accountability to state criminal and tort law.
Recent shootings involving Immigration and Customs Enforcement (ICE) agents—including fatal encounters involving both citizens and non-citizens—have not occurred at ports of entry, border checkpoints, or within narrowly defined border-adjacent enforcement zones. They have occurred in cities, residential neighborhoods, parking lots, workplaces, and public spaces hundreds or thousands of miles from the border, where ordinary Fourth Amendment policing standards apply in full.
That geographic and constitutional distinction is dispositive.
Congress’s power over immigration has never been a roving license for interior policing. Outside the border context, federal agents are not exempt from the Fourth Amendment, relieved of judicial-warrant requirements, or empowered to conduct generalized stops, seizures, searches, or uses of force untethered from individualized suspicion and judicial oversight. Yet ICE’s current interior enforcement model increasingly operates as though those constraints do not exist.
Administrative immigration warrants—executive documents issued and signed within the agency—are routinely treated as substitutes for judicial process. Interior stops and demands for identification occur without clear statutory predicates. This essay examines reported and recorded incidents in which agents conducted frisks, searches, and coercive encounters without a lawful detention predicate. Masked enforcement has become normalized, eroding the public’s ability to identify lawful authority. Civilians have been threatened for observing or recording enforcement activity. Force is deployed even where no arrest is made, and often where no arrest authority exists. And senior officials increasingly speak as though Supremacy Clause immunity shields federal agents from state criminal law and civil liability even when lethal force is used.
The central constitutional question raised by these developments is not whether the federal government may enforce immigration law. It is whether executive agencies may exercise domestic police power in the interior of the United States without judges, without transparent identification, and without meaningful accountability when force is used or liberty is restrained.
A recent Supreme Court decision, Barnes v. Felix (2025), sharpened the doctrinal lens courts must use when evaluating force: Fourth Amendment reasonableness cannot be confined to a two-second snapshot if earlier choices foreseeably created the confrontation. In a unanimous opinion, the Court rejected the “moment-of-threat” doctrine that had allowed lower courts to freeze constitutional analysis at the instant force was used while ignoring the conduct that created the confrontation. The Court reaffirmed that Fourth Amendment reasonableness requires evaluation of the totality of the circumstances, including the tactical, legal, and escalation choices that preceded the use of force.
That holding is not limited to shootings. It applies to the entire continuum of police conduct: initiation, stop, frisk, search, threat, intimidation, escalation, and force. When applied to ICE’s interior enforcement practices, Barnes destabilizes nearly every doctrinal shortcut that has insulated administrative policing from scrutiny.
This essay proceeds from the premise that constitutional policing is chronological. Encounters cannot be evaluated as isolated moments divorced from their causes. Administrative authority cannot replace judicial process. Border exceptionalism does not travel with the badge. And immunity doctrines do not erase unlawful initiation, foreseeable escalation, or wanton conduct.
The analysis unfolds in six Parts. Part I establishes the legal authority problem: what ICE is actually authorized to do, where that authority ends, and why administrative enforcement in the interior lacks constitutional grounding. Part II examines Barnes v. Felix and the Supreme Court’s rejection of chronological amnesia in use-of-force analysis. Part III expands beyond shootings to address wanton force, intimidation, and coercive conduct where no arrest occurs. Part IV analyzes unlawful stops, frisks, identification demands, and property intrusions conducted without legal authority. Part V integrates the 2013 Police Executive Research Forum (PERF) report as notice, foreseeability, and pattern evidence. Part VI addresses immunity, the Federal Tort Claims Act, criminal exposure, and the limits of Bivens contraction.
This is not an argument against immigration enforcement. It is an argument for constitutional policing. The line between law and power has not disappeared. The Supreme Court has now made clear that courts must look at the whole story. The question is whether executive agencies will respect that line—or force the judiciary to draw it again, at even greater cost.
Where this essay discusses recent or ongoing litigation, it does so to assess doctrinal trajectory and institutional implications, not to imply that unsettled legal questions have been definitively resolved.
Part I. Administrative Power Without Judicial Constraint
What ICE Is Authorized to Do—and What It Is Not
A. Immigration Enforcement Is Civil Authority, Not General Police Power
The starting point for any serious analysis of ICE’s interior conduct must be a clear understanding of what kind of authority immigration enforcement actually is. Immigration enforcement is fundamentally a civil regulatory regime, not a criminal policing mandate. Removal proceedings are civil in nature. Administrative warrants are civil instruments. Detainers are civil requests. None of these mechanisms confer the generalized police powers associated with criminal law enforcement. Although federal immigration agencies sometimes participate in criminal investigations and prosecutions, the ordinary removal apparatus—detainers, administrative warrants, and civil custody—does not itself confer general-purpose street-policing authority.
The Supreme Court has repeatedly emphasized that the civil classification of immigration law does not eliminate constitutional protections. Civil authority does not dissolve the Fourth Amendment. To the contrary, civil enforcement often demands greater restraint, precisely because it lacks the judicial safeguards that accompany criminal process.
ICE’s statutory authority permits it to investigate and enforce immigration laws as defined by Congress. It does not authorize ICE to act as a nationwide domestic police force. It does not confer roving stop-and-frisk power. It does not permit generalized identification demands. And it does not authorize the use of force untethered from lawful detention or arrest authority.
Yet ICE’s interior enforcement practices increasingly resemble ordinary policing stripped of ordinary constitutional limits.
B. Administrative Warrants Are Not Judicial Warrants
Central to this problem is the routine conflation of administrative immigration warrants with judicial warrants. An administrative warrant is an executive document signed by an agency official. It reflects no neutral magistrate’s finding of probable cause. It does not satisfy the Fourth Amendment’s warrant clause. It does not authorize entry into non-public spaces. And it does not compel state or local assistance.
By contrast, a judicial warrant represents the exercise of Article III power and embodies the Fourth Amendment’s core safeguard: that decisions to restrain liberty or invade privacy are made by a neutral judge, not by the officer seeking to enforce the law.
The Supreme Court has long rejected attempts to substitute executive judgment for judicial process. In Johnson v. United States, the Court warned that the Fourth Amendment’s warrant requirement exists precisely to prevent officers from judging the necessity of intrusion for themselves. That principle applies with full force to civil immigration enforcement.
When ICE agents initiate interior encounters under administrative authority alone, they do so without the constitutional legitimacy that ordinarily justifies coercive policing. That deficiency is not cured by agency policy, operational convenience, or asserted necessity. It is structural.
C. Federal Silence Does Not Create Executive Power
A recurring feature of ICE enforcement rhetoric is the treatment of statutory silence as implied authorization. Where Congress has not expressly forbidden a practice, the agency proceeds as though it has been permitted. That inversion of constitutional logic is precisely what courts have rejected in other contexts.
Federal power must flow from Congress. It cannot be manufactured through practice, policy memoranda, or enforcement habit. When Congress has not authorized suspicionless interior stops, generalized ID demands, or administrative policing untethered from judicial oversight, executive agencies may not create those powers by default.
This principle was reaffirmed in recent litigation upholding New York’s Protect Our Courts Act (POCA), where the federal government argued that statutory silence permitted courthouse arrests. The court rejected that claim, holding that silence constrains executive power rather than expands it. The same logic applies far beyond courthouses.
D. Border Authority Does Not Travel Into the Interior
ICE’s interior enforcement model often relies—explicitly or implicitly—on border doctrine. That reliance is misplaced. The Supreme Court has consistently limited border exceptions to narrow geographic and functional contexts. Away from the border, immigration agents are governed by ordinary Fourth Amendment rules.
Interior enforcement therefore cannot be justified by reference to border logic. Stops, frisks, searches, and uses of force conducted in the interior must satisfy the same constitutional standards that bind every other law-enforcement officer. There is no immigration carve-out from domestic policing law.
E. The Structural Consequence: Policing Without Judges
When administrative authority is treated as a substitute for judicial process, the result is a system of policing without judges. Encounters are initiated without warrants. Detentions occur without criminal predicates. Searches and frisks proceed without lawful stops. Force is deployed without judicially authorized arrests. And accountability is deferred—or denied—through immunity rhetoric.
This is not a technical defect. It is a constitutional rupture.
Part I establishes the core problem: ICE’s interior enforcement model rests on administrative power unmoored from judicial constraint. The remaining Parts examine what happens when that model collides with Fourth Amendment chronology, foreseeability, and accountability—beginning with the Supreme Court’s rejection of moment-of-threat analysis in Barnes v. Felix.
Part II. Barnes v. Felix and the End of Chronological Amnesia in Constitutional Policing
A. The Problem Barnes Confronted: Judicial Time-Compression as Doctrine
For more than a decade, excessive-force jurisprudence—particularly in cases involving federal officers—had drifted toward a quiet but consequential distortion. Courts increasingly evaluated the constitutionality of deadly force by isolating the final seconds of an encounter, treating everything that preceded the use of force as legally irrelevant once an officer perceived a threat.
This “moment-of-threat” doctrine did not arise from Supreme Court precedent. It emerged instead from lower-court discomfort with scrutinizing police tactics, escalation choices, and unlawful initiation. By freezing the constitutional analysis at the instant force was used, courts could avoid confronting whether the encounter should have occurred at all.
That move had three predictable effects:
Causation disappeared. Officers were judged only on reaction, not on the chain of decisions that produced the confrontation.
Foreseeability was erased. Escalation became inevitable by definition.
Accountability collapsed. Tactical recklessness became constitutionally invisible.
Barnes v. Felix rejected that framework in unequivocal terms.
B. Barnes v. Felix: What the Supreme Court Actually Held
In Barnes v. Felix, the Supreme Court unanimously rejected the Fifth Circuit’s instruction that courts must focus exclusively on the “moment of threat” when evaluating deadly force. The Court reaffirmed that the Fourth Amendment’s “objective reasonableness” inquiry, articulated in Graham v. Connor, requires evaluation of the totality of the circumstances, including the conduct that led to the use of force.
The Court did not announce a new test. It restored an old one.
Under Graham, reasonableness is assessed “from the perspective of a reasonable officer on the scene,” but that perspective includes context, chronology, and causation. 490 U.S. 386, 396 (1989). Barnes made explicit what Graham always implied: courts may not artificially sever an officer’s final reaction from the events the officer helped create.
The Court emphasized that the Fourth Amendment does not permit constitutional review to be reduced to a snapshot. Encounters unfold over time. Decisions accumulate. Risks are created, amplified, or avoided. To ignore that reality is not neutrality—it is distortion.
C. Barnes as a Reaffirmation of Garner, Not a Departure
The doctrinal roots of Barnes lie squarely in Tennessee v. Garner. In Garner, the Court held that deadly force may not be used unless it is necessary to prevent escape and the officer has probable cause to believe the suspect poses a significant threat of death or serious physical injury. 471 U.S. 1, 11–12 (1985).
Necessity is a temporal concept. Force is “necessary” only if no reasonable alternatives exist at the moment it is used—but that inquiry presupposes a lawful and reasonable chain of events leading to that moment.
Barnes restores that logic. An officer cannot create the conditions of necessity through unlawful initiation, reckless escalation, or avoidable confrontation and then invoke necessity as a defense. Self-created danger is not constitutional justification; it is constitutional failure.
D. Why Barnes Applies Beyond Shootings
A critical error in media and institutional commentary is treating Barnes as a “shooting case.” It is not.
Barnes concerns how courts evaluate police conduct, not merely how they evaluate bullets. The Court’s rejection of moment-of-threat analysis applies to the entire spectrum of Fourth Amendment seizures, including:
investigatory stops,
frisks,
searches,
coercive questioning,
threats and intimidation,
non-lethal force,
and uses of authority that restrain liberty without arrest.
Any time a court is asked to evaluate whether police conduct was reasonable, Barnes requires examination of how the encounter began, how it unfolded, and whether escalation was foreseeable.
This has immediate implications for ICE’s interior enforcement practices, which frequently involve coercive encounters that never culminate in arrest but nonetheless restrain liberty through force, threat, or authority.
E. Barnes and the Re-Legalization of Causation
One of the most important—and least discussed—effects of Barnes is its restoration of causation to Fourth Amendment analysis.
Before Barnes, lower courts often treated causation as a policy concern rather than a constitutional one. Officers were judged solely on reaction, not on contribution. Barnes rejects that artificial divide.
Causation matters because:
unlawful initiation increases the likelihood of resistance;
aggressive positioning escalates tension;
weaponized presence invites confrontation;
anonymity and masking increase panic;
coercive ID demands create perceived custody.
When these choices lead to force, courts must consider whether the force was a product of the officer’s own conduct. That inquiry is constitutionally required, not optional.
F. Barnes and the Collapse of “Split-Second” Absolutism
The phrase “split-second decision” has become a rhetorical shield rather than a legal standard. Barnes dismantles that shield.
The Court did not deny that officers make rapid decisions. It rejected the premise that speed excuses prior illegality. A decision may be split-second in execution but years in the making in policy, training, and tactical culture.
Where officers initiate encounters without lawful authority, escalate through intimidation or force, and ignore known alternatives, the final decision to use force is not insulated by its speed.
This principle matters acutely in ICE interior enforcement, where agents often:
initiate encounters without judicial warrants,
rely on civil administrative authority,
confront individuals in public or private spaces,
and escalate rapidly into force.
Under Barnes, courts must ask whether the encounter’s urgency was manufactured, not merely perceived.
G. Barnes as a Constraint on Immunity Narratives
Barnes also constrains how immunity doctrines are applied.
Supremacy Clause immunity and qualified immunity both rely—explicitly or implicitly—on assumptions of lawful conduct and reasonable necessity. When courts are required to examine the full chronology of an encounter, those assumptions become contestable.
An officer who lacked authority to stop, frisk, or demand identification cannot rely on immunity to sanitize the resulting escalation. Immunity does not attach to conduct that was unlawful at its inception or reckless in its execution.
Barnes thus narrows the space in which immunity narratives can operate by forcing courts to confront facts they previously ignored.
H. Barnes and Administrative Policing in the Interior
The collision between Barnes and ICE’s interior enforcement model is unavoidable.
ICE interior encounters frequently begin with:
administrative warrants rather than judicial warrants,
civil authority rather than criminal predicates,
questioning rather than lawful detention,
coercive presence rather than consensual interaction.
Under Barnes, courts must evaluate whether those choices created the very dangers later used to justify force. Administrative authority does not immunize causation. Civil enforcement does not erase chronology. Border rhetoric does not suspend constitutional analysis.
When force follows from administrative policing untethered from judicial constraint, Barnes requires courts to say so.
I. The Structural Significance of Barnes
Barnes v. Felix does more than correct a doctrinal error. It restores a structural principle: constitutional policing must be evaluated as a process governed by law, not as a series of isolated reactions justified by fear.
That principle applies with special force to federal agencies operating in the interior of the United States, where judicial oversight, state law, and ordinary Fourth Amendment protections are at their apex.
The remaining Parts of this commentary apply Barnes to the full spectrum of ICE interior conduct—wanton force without arrest, intimidation of observers, unlawful stops and frisks, coercive ID demands, property intrusions, and the collapse of immunity narratives when administrative power substitutes for judicial authority.
Barnes has ended the era of constitutional amnesia. What follows examines what that end requires courts—and agencies—to confront.
Part III. Wanton Force, Intimidation, and Coercive Policing Without Arrest: Why Constitutional Violations Do Not Require Handcuffs—or a Charge
A persistent failure in both media commentary and judicial treatment of federal law-enforcement encounters is the assumption that constitutional scrutiny is triggered primarily by arrest, prosecution, or death. Conduct that does not culminate in formal custody is routinely treated as marginal, discretionary, or merely “aggressive policing.” That assumption has never been doctrinally sound, and after Barnes v. Felix, it is no longer defensible.
The Fourth Amendment does not regulate outcomes; it regulates conduct. Seizures occur not only when a person is handcuffed or jailed, but whenever government authority is exercised in a manner that restrains liberty. Force is not limited to gunfire. Coercion is not limited to detention. And accountability does not hinge on whether the state ultimately chooses to charge.
ICE’s interior enforcement practices expose the consequences of collapsing constitutional analysis into arrest-centric thinking. Agents routinely engage in physical force, threats, intimidation, and coercive encounters that restrain liberty, escalate tension, and create danger—yet end without arrest. These encounters are often invisible to courts precisely because they are mischaracterized as preliminary, informal, or non-events. Under Barnes, that mischaracterization collapses.
The Supreme Court’s insistence on chronological analysis requires courts to examine these encounters as constitutional acts in their own right, not as legally irrelevant prefaces.
At the most basic level, the Fourth Amendment protects against unreasonable seizures. A seizure occurs when a reasonable person would not feel free to leave or to disregard an officer’s commands. This principle has long been settled. The Court made clear in United States v. Mendenhall that a seizure can occur through a show of authority alone, even absent physical force, where an officer’s conduct communicates that compliance is not optional. That understanding was reaffirmed in Florida v. Bostick, which emphasized that coercion may arise from the totality of circumstances, including positioning, tone, and context.
ICE interior encounters frequently satisfy this standard without ever producing an arrest. Agents surround individuals, block movement, issue commands, display weapons, demand identification, and interrogate under circumstances where no reasonable person would believe they are free to disengage. These acts restrain liberty. They are seizures. The absence of handcuffs does not alter that constitutional fact.
What makes these encounters especially significant after Barnes is their role in producing escalation. Courts can no longer treat these actions as neutral preliminaries. They must be analyzed as part of the causal chain. When an officer initiates an encounter through intimidation or force without lawful authority, and that encounter predictably escalates, the escalation cannot be severed from its origin.
ICE’s use of physical force in non-arrest contexts illustrates the problem vividly. Reports and recordings from interior operations increasingly show agents pushing civilians, grabbing arms, shoving individuals aside, and restraining movement without effectuating arrests. These actions are often justified post hoc as crowd control, officer safety, or situational necessity. But constitutional law does not recognize a free-floating power to use force against civilians simply because enforcement is underway.
The Supreme Court has made clear that even minimal physical force constitutes a seizure when it restrains movement. In Torres v. Madrid, the Court reaffirmed that the application of physical force with intent to restrain is a seizure, even if the person does not submit. That holding underscores a principle often overlooked in non-arrest cases: force does not need to succeed in custody to trigger constitutional scrutiny.
When ICE agents apply physical force without arrest authority—particularly under civil administrative mandates—they are engaging in seizures that require justification. Where no lawful predicate exists, the force is unreasonable by definition. Under Barnes, courts must examine whether such force was necessary, proportionate, and lawfully initiated. They may not dismiss it as incidental simply because it did not culminate in charges.
Threats and intimidation present an equally serious constitutional problem. ICE interior operations increasingly involve verbal threats directed at civilians who are not targets of enforcement: warnings to step back, to stop recording, to disperse, or to remain silent. These threats are often accompanied by aggressive posture, weapon display, or physical positioning that communicates the capacity and willingness to use force.
Such conduct implicates both Fourth Amendment and First Amendment protections, but its relevance under Barnes lies in how it contributes to escalation. Threats restrain liberty. They alter behavior. They induce compliance. And they frequently provoke fear, confusion, or resistance that later becomes the basis for force justification.
The Supreme Court has long recognized that a seizure may occur through intimidation alone. In Brower v. County of Inyo, the Court explained that a seizure requires intentional acquisition of physical control, but subsequent cases have clarified that control may be exerted through authority rather than contact. The question is whether the government’s conduct meaningfully interferes with freedom of movement. Threatening civilians for observing law enforcement operations—particularly where no lawful stop exists—meets that standard.
Under Barnes, courts must now treat such intimidation as part of the constitutional narrative. When force follows intimidation, the prior threats cannot be erased from the analysis. They are not background noise; they are causal facts.
One of the most troubling features of ICE interior conduct is the emergence of what can fairly be described as boorish enforcement culture—conduct that appears designed to dominate, humiliate, or punish rather than to lawfully enforce. Shouting commands at non-targets, pushing civilians out of the way, mocking or threatening observers, and escalating confrontations with no enforcement necessity are not constitutionally neutral behaviors. They are exercises of state power.
Historically, courts have been reluctant to constitutionalize “demeanor” or “attitude.” But Barnes changes the stakes by restoring chronology. When demeanor becomes escalation, when attitude becomes intimidation, and when intimidation produces confrontation, courts are required to examine that progression.
This matters profoundly in ICE cases because many interior encounters end without arrest. If courts confine constitutional scrutiny to arrest or death, entire categories of unlawful conduct will continue unchecked. Barnes rejects that approach by demanding examination of how encounters unfold, not merely how they end.
The legal significance of these non-arrest encounters extends beyond civil liability. They shape immunity analysis. Supremacy Clause immunity, like qualified immunity, presupposes lawful conduct undertaken in good faith and necessity. When agents engage in intimidation or force without lawful authority, that presupposition fails. Immunity doctrines cannot be used to retroactively justify conduct that was unlawful at inception.
Moreover, these encounters have institutional consequences. They normalize a form of administrative policing untethered from judicial oversight, in which coercion substitutes for warrants and force substitutes for authority. Over time, this model erodes public trust, increases the likelihood of violent escalation, and produces precisely the kinds of confrontations that Barnes requires courts to scrutinize.
ICE interior shootings do not emerge from a vacuum. They emerge from an enforcement culture that tolerates force and intimidation as preliminary tools. When courts ignore those preliminaries, they distort the constitutional record. Barnes forbids that distortion.
The constitutional error, then, is not merely excessive force in the moment it is deployed. It is the systemic failure to recognize that wanton force, threats, and coercive conduct without arrest are themselves Fourth Amendment violations, and that they frequently serve as the causal bridge to more serious harm.
Part IV turns to a related but distinct category of unlawful conduct: stop-and-frisk–style encounters, identification demands, and searches carried out without legal authority. Together, these practices reveal how administrative power, when decoupled from judicial constraint, reproduces the most discredited features of domestic policing—without even the minimal safeguards that once accompanied them.
Part IV. Stop-and-Frisk Without Law: Identification Demands, Suspicionless Seizures, and the Resurrection of Discredited Policing Through Administrative Power
If Part III exposes the constitutional danger of force and intimidation untethered from arrest, Part IV addresses an even more foundational defect in ICE’s interior enforcement model: the initiation of encounters themselves. Stop-and-frisk–style seizures, demands for identification, and searches conducted without lawful authority are not peripheral abuses. They are the ignition point. Under Barnes v. Felix, they are no longer analytically invisible.
The premise that federal immigration agents possess inherent authority to stop individuals, demand identification, or conduct searches in the interior of the United States is legally false. It reflects neither constitutional doctrine nor statutory design. Yet that premise increasingly animates interior enforcement encounters, producing coercive stops that mirror—and in some respects exceed—the most discredited practices of municipal policing.
The Fourth Amendment draws a bright line at initiation. Police power does not arise from curiosity, suspicion untethered to law, or administrative convenience. It arises only when legal predicates are satisfied. Outside the border context, immigration agents stand on the same constitutional footing as any other law-enforcement officer. They may not stop, question, detain, frisk, or search without lawful justification.
The Supreme Court’s modern seizure doctrine begins with Terry v. Ohio, which permits brief investigatory stops only where an officer can articulate specific and reasonable suspicion that criminal activity is afoot. That authority is narrow by design. It is justified by the need to prevent imminent crime, not to conduct generalized inquiry. The Court has repeatedly emphasized that Terry is not a license for exploratory detention.
Immigration enforcement does not expand that authority. To the contrary, the Court has consistently rejected attempts to convert immigration status into a substitute for suspicion. In United States v. Brignoni-Ponce, the Court held that roving immigration patrols away from the border may not stop vehicles based on generalized assumptions about ethnicity or appearance. The requirement of individualized suspicion applies with full force. Immigration enforcement, the Court explained, does not authorize dragnet stops in the interior.
That principle was reinforced in INS v. Delgado, where the Court evaluated factory surveys conducted by immigration agents. Although the Court ultimately found no seizure in that specific context, it did so only after emphasizing that the agents did not restrain movement, issue commands, or block exits. The decision turned on the absence of coercion. The implication is unmistakable: once agents restrain movement or assert authority, Fourth Amendment scrutiny attaches.
ICE interior operations increasingly disregard this boundary. Agents initiate encounters without articulable suspicion, position themselves to block movement, issue commands, and demand identification from individuals who are not suspected of any crime. These encounters are often justified as “consensual,” but the label collapses under scrutiny. A reasonable person confronted by armed agents asserting federal authority in public space does not feel free to walk away.
The demand for identification is particularly revealing. There is no general legal obligation in the United States to carry or produce identification absent specific statutory authorization. The Supreme Court addressed this directly in Hiibel v. Sixth Judicial District Court, holding that identification requirements arise only where a valid Terry stop has already been lawfully initiated and where state law expressly authorizes the request. Even then, the authority is limited. Identification demands do not stand alone; they depend entirely on the legality of the stop itself.
ICE agents possess no broader identification authority in the interior. Federal immigration statutes do not create a generalized stop-and-identify regime. Civil administrative authority does not substitute for criminal suspicion. Absent a lawful stop, a demand for identification is itself a seizure—an assertion of authority restraining liberty.
When agents demand identification without lawful predicates, they commit the very constitutional violation that Barnes v. Felix instructs courts not to overlook. The illegality lies not only in what follows, but in the initiation itself. Courts may not freeze the frame at the moment resistance occurs or force is used. They must examine whether the encounter was lawfully begun.
Stop-and-frisk doctrine underscores the danger. Even under Terry, frisks are permitted only where an officer reasonably believes the person is armed and dangerous. That standard is exacting. It does not permit generalized safety concerns or categorical assumptions. It requires articulable facts tied to the individual.
ICE interior encounters frequently bypass this requirement altogether. Reports and recordings show agents patting down individuals, reaching into pockets, or searching bags without articulating any basis to believe the person is armed. These actions are justified as “officer safety,” but the Supreme Court has repeatedly rejected safety as an independent source of authority. Safety concerns may justify a frisk only after a lawful stop has occurred and only where danger is reasonably suspected.
When agents conduct frisks or searches absent lawful stops, they commit constitutional violations regardless of whether contraband is found or arrests follow. These violations do not evaporate simply because enforcement later de-escalates. Under Barnes, the entire sequence remains constitutionally relevant.
Unlawful searches extend the problem further. ICE interior operations increasingly involve entry onto private property, searches of vehicles, and intrusion into homes or curtilage without judicial warrants. Administrative immigration warrants do not authorize such searches. They are civil instruments. They do not satisfy the Fourth Amendment’s warrant requirement. They do not authorize entry into non-public spaces without consent.
The Supreme Court’s Fourth Amendment jurisprudence has been unwavering on this point. In Payton v. New York, the Court held that absent exigent circumstances, the home may not be entered without a judicial warrant. That principle applies regardless of the enforcing agency. Immigration status does not diminish the sanctity of the home.
Attempts to justify interior searches through consent often collapse under scrutiny. Consent must be voluntary, informed, and uncoerced. When armed agents assert authority, block exits, issue commands, or threaten consequences, consent is illusory. Courts have long recognized that acquiescence to authority is not consent.
These initiation defects matter profoundly under Barnes v. Felix. The Court’s rejection of the “moment-of-threat” doctrine requires courts to trace force back to its origins. When an encounter begins with an unlawful stop, an unauthorized identification demand, or an illegal search, any subsequent escalation is tainted. The government cannot manufacture danger through unlawful conduct and then invoke that danger to justify force.
This principle resonates directly with ICE shootings in the interior. Many begin with stops lacking lawful authority. Others arise from identification demands that provoke confusion or resistance. Still others follow unlawful entries or searches that generate confrontation. In each scenario, the government’s narrative typically focuses on the final seconds—the perceived threat, the movement, the reaction. Barnes forbids that narrowing.
The legal consequence is unavoidable. Courts must evaluate whether ICE agents had lawful authority to stop, question, frisk, or search in the first place. If they did not, the constitutional analysis shifts dramatically. Force used during an unlawful seizure is presumptively unreasonable. Immunity doctrines weaken. Civil and criminal liability become plausible.
This analysis also exposes the institutional risk of administrative policing. By operating outside judicial oversight, ICE interior enforcement reproduces the very practices that courts have spent decades repudiating in municipal contexts. Stop-and-frisk regimes were dismantled not because they were unpopular, but because they were unconstitutional. Their resurrection through federal administrative authority does not cure the defect. It compounds it.
The Constitution does not permit federal agencies to bypass settled Fourth Amendment doctrine by rebranding policing as civil enforcement. Authority does not arise from mission statements. It arises from law. Where that law is absent, initiation itself is unlawful.
Part V will turn to the significance of institutional notice and foreseeability, examining how the 2013 PERF review of CBP use of force bears directly on Barnes analysis, immunity claims, and the government’s ability to plead ignorance when interior encounters escalate into violence.
Part V. Foreseeability, Institutional Notice, and the 2013 PERF Report: Why ICE Cannot Plead Surprise When Interior Encounters Turn Violent
If Barnes v. Felix supplies the doctrinal instruction manual for how courts must analyze use of force, the 2013 Police Executive Research Forum review of Customs and Border Protection’s use of force supplies the factual predicate that deprives federal agencies of plausible deniability. Together, they close the gap between individual encounter analysis and institutional accountability. Under this combined framework, ICE cannot credibly characterize interior shootings as unpredictable, unavoidable, or the result of isolated misjudgment. They are foreseeable outcomes of a known enforcement model.
Foreseeability is not an abstract tort concept imported into constitutional law by accident. It is embedded in Fourth Amendment reasonableness analysis. The Supreme Court has repeatedly recognized that police conduct must be evaluated in light of what officers knew or should have known at the time, including whether their own tactical decisions created or magnified risk. Barnes makes explicit what earlier cases implied: courts may not ignore antecedent conduct simply because the final seconds involved a perceived threat. When risk is self-created, it cannot be used as a shield.
The 2013 PERF review matters because it placed the federal government on formal notice of precisely the kinds of escalation dynamics now appearing in ICE’s interior operations. Commissioned by U.S. Customs and Border Protection after a series of controversial shootings, the review examined dozens of deadly force incidents and identified systemic patterns. Agents routinely placed themselves in avoidable danger, particularly during vehicle encounters. They failed to disengage when safe alternatives were available. They relied on proximity, positioning, and confrontation tactics that predictably escalated situations rather than resolved them.
These were not marginal critiques. PERF explicitly warned that agents were too often creating the very threats later invoked to justify deadly force. The report emphasized disengagement, distance, and de-escalation as constitutional and tactical imperatives. It cautioned against relying on self-created peril as a justification for shooting. In effect, PERF articulated a pre-Barnes version of the same analytical principle the Supreme Court would later adopt.
That warning was not limited to border contexts. Although CBP’s mission includes border enforcement, PERF’s analysis focused on human behavior, tactical decision-making, and use-of-force psychology. Those dynamics do not change simply because an encounter occurs in the interior. If anything, they become more volatile. Interior encounters involve civilians who are not attempting to cross borders, who may not expect federal enforcement, and who are more likely to perceive sudden confrontations as unlawful or threatening.
ICE inherited this institutional knowledge. CBP and ICE operate under the same departmental umbrella. They share training frameworks, use-of-force policies, and operational culture. The federal government cannot plausibly argue that lessons learned in one component evaporate when another component engages in similar conduct.
This institutional continuity is critical for litigation. Under Barnes, the government may not isolate the “moment of threat” from the decisions that produced it. Under traditional foreseeability analysis, the government may not claim ignorance where prior studies identified the same risk vectors. The PERF report transforms later shootings from unforeseeable tragedies into predictable failures of compliance.
The relevance extends beyond civil liability. Supremacy Clause immunity, as discussed earlier, depends on conduct being both authorized and “necessary and proper.” Necessity is not judged in a vacuum. It is judged against available alternatives and known risks. Where an agency has been warned that certain tactics reliably escalate encounters into deadly force, continued use of those tactics undermines any claim that resulting force was necessary.
This point is decisive. An officer who fires because he is suddenly endangered after placing himself in a known risk position is not acting out of necessity. He is reacting to a condition he helped create. Barnes instructs courts to consider that sequence. PERF demonstrates that the sequence was known in advance.
Interior ICE shootings fit the pattern PERF identified. Agents initiate encounters without judicial warrants. They conduct stops without lawful predicates. They approach vehicles or individuals at close range. They issue commands without clear authority. They operate masked, increasing confusion and resistance. When civilians react—by moving, questioning authority, or attempting to disengage—agents interpret that reaction as threat. The escalation is then framed as unavoidable.
Under Barnes, that framing collapses.
The constitutional analysis must ask whether the risk was foreseeable and whether it was avoidable. PERF answers both questions affirmatively. The government knew that confrontational positioning, proximity, and failure to disengage increased the likelihood of deadly force. It knew that alternatives existed. It knew that administrative enforcement lacked the legal and tactical foundation of criminal policing. Continued reliance on these methods in the interior cannot be characterized as accidental.
This institutional notice also affects municipal and state liability theories. Where state or local officers assist ICE in interior operations, they inherit the same foreseeability problem. Participation in known-risk enforcement models exposes cooperating agencies to constitutional claims under § 1983 and state law. Anti-commandeering doctrine does more than permit withdrawal; it counsels it. States are not required to lend their officers to a federal program operating contrary to known constitutional risk.
Foreseeability further informs remedies. Injunctive relief becomes more plausible where patterns are established. Policy challenges gain traction where agencies ignore their own commissioned warnings. Courts are more likely to scrutinize training, supervision, and policy decisions where prior analyses identified deficiencies and recommended reforms that were not implemented.
The government’s likely response—that PERF addressed a different agency, a different time, or a different context—fails on its own terms. PERF addressed use of force. Use of force doctrine is context-sensitive but not context-exclusive. The core lesson—that officers must avoid creating the conditions that lead to deadly force—is universal. Barnes confirms that universality.
In litigation arising from ICE shootings, PERF will increasingly appear not as background, but as evidence. Plaintiffs will cite it to establish notice. Prosecutors may cite it to rebut claims of necessity. Courts will look to it when assessing whether escalation was avoidable. Agencies will be asked why known risks were ignored.
The convergence of Barnes and PERF thus represents a structural turning point. One supplies the legal rule; the other supplies the factual predicate. Together, they deny the government its most familiar defense: that tragedy struck without warning.
Part VI examines how this convergence reshapes—rather than eliminates—accountability: narrowing implied Bivens remedies while reallocating constitutional exposure into the Federal Tort Claims Act, state tort law, and other post-incident review mechanisms that remain fully operative.
Part VI. The Vanishing Remedy Problem: Barnes, Goldey, Noem, and the Reallocation of Accountability
The Supreme Court’s modern use-of-force jurisprudence has produced a paradox that is now impossible to ignore. On the one hand, the Court has reaffirmed—most recently and most forcefully in Barnes v. Felix—that constitutional scrutiny of deadly force must be contextual, chronological, and resistant to post-hoc time compression. On the other hand, through Egbert v. Boule and its progeny, the Court has steadily narrowed the implied damages remedy that once served as the primary vehicle for individual-capacity accountability when federal officers violate the Constitution. And Noem v. Vasquez Perdomo, issued on the emergency docket, intensifies the practical stakes by allowing aggressive interior operations to proceed while expressly leaving legality unresolved.
The result is not doctrinal coherence. It is a redistribution of constitutional risk.
Start with Barnes. In a unanimous decision, the Court rejected the Fifth Circuit’s attempt to convert the “moment of threat” into a constitutional blindfold—an approach that would have permitted courts to justify lethal force by isolating the final seconds of an encounter while ignoring the officer conduct and escalation choices that made those seconds inevitable. The Court reaffirmed that Fourth Amendment reasonableness is assessed under the totality of the circumstances. That inquiry may include the antecedent decisions that shaped the confrontation, especially where earlier conduct foreseeably escalated the encounter or manufactured urgency. The point was not to announce a new test, but to restore the integrity of Graham v. Connor and Tennessee v. Garner: the Constitution does not permit courts to freeze time to rescue force from its causes.
That restoration matters immediately in the interior immigration context because the encounters now producing shootings are not custodial incidents governed by the Eighth Amendment. They are street-level seizures—streets, parking lots, residences, workplaces—where Fourth Amendment doctrine applies in full. In that setting, the legality of force cannot be evaluated in isolation from the legality of the stop, the demand for identification, the assertion of authority, the manner of approach, and the escalation choices that preceded the trigger pull. Under Barnes, an unlawful initiation or reckless predicate is no longer a background fact that can be ignored once “threat” is invoked; it becomes part of the constitutional question itself.
Yet at precisely the moment when constitutional scrutiny widens, the remedial pathway contracts. Goldey v. Fields confirms the Court’s continued refusal to extend Bivens beyond the narrow set of contexts it has historically recognized. There, the Court rejected an implied damages remedy for an Eighth Amendment excessive-force claim against federal prison officials, reasoning—consistent with Ziglar v. Abbasi and Egbert—that this was a “new context” and that “special factors” counsel hesitation where Congress has legislated in the space without creating a damages cause of action and where alternative remedial structures exist. Formally, Goldey is prisoner-litigation and Eighth Amendment. Functionally, it is a reminder that the Court now treats implied constitutional damages remedies against federal officers as a disfavored exception rather than an available baseline.
That stance will be invoked aggressively in civil cases arising from ICE shootings. The government will argue that excessive-force claims against immigration agents arise in a new context; that immigration enforcement implicates national security, foreign affairs, and sensitive policy judgments; and that the judiciary should not imply a damages remedy absent congressional authorization. That argument may succeed as to Bivens. But it does not resolve the underlying constitutional injury. It reallocates where and how the injury is litigated.
This reallocation becomes sharper once Noem v. Vasquez Perdomo is placed in the frame. Noem is not a merits decision. It is emergency posture—a stay that lifts an injunction and permits contested enforcement practices to proceed while appellate litigation continues. The Court did not hold that the underlying practices are constitutional. It did not bless suspicionless stops, generalized identification demands, or force untethered from individualized suspicion. If anything, the reasoning that appears in concurring writing underscores the opposite: the constitutional baseline remains ordinary Fourth Amendment doctrine, including Brignoni-Ponce and the reasonable-suspicion framework that governs investigatory stops away from the border. The practical implication is straightforward: enforcement is allowed to continue before legality is adjudicated, which increases—not decreases—the importance of downstream accountability when force is used.
Read together, Barnes, Goldey, and Noem create a landscape in which operations accelerate, implied remedies recede, and factual scrutiny becomes more consequential. The Court has insisted that judges must look at the whole story of a use-of-force incident, while simultaneously narrowing one of the traditional mechanisms by which that story produced individual-capacity damages liability. That tension does not disappear. It migrates—into other remedial channels and into other forms of exposure.
One primary destination is the Federal Tort Claims Act. As Bivens remedies contract, the FTCA becomes the central civil vehicle through which victims of federal use-of-force incidents seek damages. Unlike Bivens, FTCA claims proceed against the United States and incorporate state tort law as the operative standard. That structure forces courts to do what Barnes demands: reconstruct the chronology of the encounter, evaluate foreseeability and escalation, and decide whether the conduct—viewed as a sequence—was unreasonable under the governing state-law framework. The fact development that some courts previously avoided by freezing time becomes unavoidable when the United States itself is the defendant and the claim is framed in negligence, assault, battery, wrongful death, or related tort theories.
This shift has particular consequences for interior immigration enforcement because state tort standards often impose sharper constraints on force and intrusion than the constitutional floor. And the government’s favorite barrier—the discretionary-function exception—does not automatically cover everything that can be described as “enforcement.” It does not sanitize conduct that violates clear legal constraints, nor does it reliably protect wanton, reckless, or malicious actions. Interior tactics that involve unlawful stops, coercive identification demands where no legal obligation exists, threats or intimidation directed at bystanders observing law enforcement activity, or forcible entry into homes without judicial warrants create fact patterns that are poorly suited to discretionary-function insulation. Under Barnes, the antecedent conduct is not severable from the force that follows; it is part of the reasonableness inquiry.
Nor does Bivens contraction eliminate criminal exposure. Supremacy Clause immunity is not a rhetorical force field; it is a necessity-based doctrine that historically protects federal officers only when they act within lawful authority and do no more than is necessary and proper to carry out their duties. Administrative immigration warrants do not create criminal probable cause. Civil enforcement authority does not generate a generalized power to seize, frisk, search, or use force as if executing a judicial warrant in a criminal case. When force is deployed in encounters that begin without lawful detention predicates—particularly in the interior—the “necessary and proper” claim becomes fact-intensive and fragile, because necessity cannot be manufactured through unlawful initiation or foreseeable escalation.
This is where the 2013 PERF review commissioned by U.S. Customs and Border Protection becomes more than historical context. It functions as notice and foreseeability evidence. The report documented avoidable escalation patterns in immigration enforcement, warned against tactics that create proximity-driven danger, and elevated disengagement and de-escalation as operational imperatives precisely because self-created peril is a predictable pathway to unjustified shootings. Those findings do not operate as policy suggestions in this essay; they operate as institutional knowledge. When agencies are on notice that particular tactics predictably increase the likelihood of lethal outcomes, continued reliance on those tactics undermines the plausibility of “necessity” claims—whether in tort litigation, immunity litigation, or criminal evaluation.
The Court’s own doctrine, properly read, converges on the same point. Barnes rejects chronological blinders. Garner demands necessity. Graham demands objective reasonableness. None of these standards are satisfied by encounters precipitated through unlawful stops, coercive identification demands, or aggressive conduct toward civilians not suspected of criminal wrongdoing. When such conduct occurs in the interior, the government is not operating in a doctrinal vacuum. It is operating within a legal framework that increasingly requires courts to examine the full chain of causation—even as the Court withdraws one implied remedy route.
What emerges, then, is not immunity. It is exposure redistributed across legal domains. The narrowing of Bivens does not eliminate accountability; it reshapes it. Constitutional violations migrate into FTCA litigation, state-law tort theories, equitable and injunctive challenges, and—in the most egregious cases—criminal evaluation, all of which are intensified rather than softened by Barnes’s insistence that courts consider what officers did before the moment force was used.
That redistribution carries institutional risk. By allowing operations to proceed under Noem while limiting implied damages remedies under Goldey and Egbert, the Court has placed greater pressure on downstream accountability mechanisms to bear the load. If those mechanisms are obstructed through expansive immunity claims, asserted inherent authority, anonymity practices that frustrate identification, or refusal to acknowledge the limits of administrative power, the legitimacy crisis deepens.
The Constitution does not permit a regime in which federal agents exercise domestic police power without judges, without transparent identification, and without meaningful accountability. Barnes requires courts to see the whole story. Goldey confirms they may not always supply the implied remedy once associated with that scrutiny. Noem permits enforcement to continue while legality remains contested. Together, those decisions do not close the door on accountability. They relocate it—and, in doing so, make the eventual reckoning more fact-driven, more jurisdictionally diverse, and potentially more destabilizing than the remedies the Court has withdrawn.
Part VII. Conclusion: Administrative Power Without Judicial Constraint and the Future of Constitutional Policing
The doctrinal arc traced in this essay leads to a conclusion that is as unsettling as it is unavoidable: the federal government’s current interior immigration enforcement model is operating in a widening gap between authority and accountability. That gap is not the product of a single policy choice or a single case. It is the cumulative effect of judicial doctrines that, when read together, permit enforcement to accelerate while narrowing the pathways through which constitutional violations are remedied.
Barnes v. Felix restores an essential principle of constitutional policing—that the legality of deadly force cannot be evaluated by freezing time at the moment of perceived threat. Courts must examine the entire sequence of events, including the decisions and tactics that created the danger. That holding is neither radical nor novel. It is a reaffirmation of what the Fourth Amendment has always required: reasonableness measured in context, not hindsight manipulation.
At the same time, Goldey v. Fields confirms that federal courts are increasingly unwilling to imply damages remedies against federal officers, even where constitutional violations are plausibly alleged. The Court’s insistence that remedy creation is the province of Congress, not the judiciary, leaves a growing category of constitutional injuries without a direct individual-capacity cause of action. Noem v. Vasquez Perdomo, issued on the emergency docket, compounds this tension by allowing interior enforcement to proceed while expressly declining to resolve its legality.
The convergence of these decisions produces a system that is structurally unstable. Courts are required to see more, but empowered to do less. Enforcement continues, but accountability is deferred, displaced, or redirected into alternative legal channels. The Constitution, however, does not tolerate vacuum zones. When one remedial pathway closes, pressure necessarily shifts elsewhere.
That shift is already underway. As Bivens remedies contract, constitutional accountability migrates into Federal Tort Claims Act litigation, state tort law, and, in the most serious cases, criminal jurisdiction. These forums demand factual development, not doctrinal shortcuts. They require courts to confront whether the underlying enforcement action was lawful, whether the use of force was necessary and proportionate, and whether the risks that culminated in violence were foreseeable and avoidable. Under Barnes, those questions cannot be evaded by isolating the final seconds of an encounter.
This redistribution of accountability has profound implications for interior immigration enforcement. Administrative warrants do not establish criminal probable cause. Civil immigration authority does not confer general police power. Masked enforcement, coercive identification demands, intimidation of observers, warrantless entries, and aggressive stop-and-frisk practices are not constitutionally neutral tactics. They are antecedent decisions that shape the legality of everything that follows. When such tactics are employed in public spaces, far from the border, the border-exception logic that has long distorted immigration law disappears. What remains is ordinary constitutional policing—or its absence.
Recent interior incidents involving lethal force, including the death of Renee Nicole Good, underscore that this doctrinal tension is no longer abstract. These events are not adjudicated here, nor should they be. Their significance lies elsewhere. They illustrate, in real time, the stakes of allowing administrative power to operate without judicial constraint. They pose the very questions the Supreme Court’s recent decisions force courts to confront: who defines the limits of federal police power in the interior, and by what standards is that power judged after force is used?
The Constitution supplies the answer, even if institutional actors resist it. Authority must flow from Congress. Force must be justified by law, not convenience. Immunity protects only lawful, necessary, and proper conduct—not reckless escalation or ultra vires action. And judicial review cannot be reduced to a procedural formality that arrives only after remedies have been stripped away.
This is not an argument against immigration enforcement. It is an argument against enforcement untethered from judicial oversight, statutory grounding, and constitutional restraint. A system that relies on administrative paperwork instead of judges, anonymity instead of identification, and rhetoric instead of law does not strengthen federal authority. It corrodes it.
The Supreme Court has made clear, through Barnes, that courts must look at the whole story when force is used. Through Goldey, it has narrowed one avenue of redress. Through Noem, it has allowed enforcement to proceed while leaving legality unresolved. Taken together, these decisions do not eliminate accountability. They postpone it—and in doing so, increase the likelihood that it will reemerge in more disruptive, more fragmented, and more consequential forms.
Administrative power without judicial constraint is not a stable endpoint. It is a constitutional fault line. Whether that line is drawn deliberately by courts, or violently by events, will determine the future of constitutional policing in the interior of the United States.
Reader Supplement
To support this analysis, I have added two companion resources below.
First, a Slide Deck that distills the core legal framework, case law, and institutional patterns discussed in this piece. It is designed for readers who prefer a structured, visual walkthrough of the argument and for those who wish to reference or share the material in presentations or discussion.
Second, a Deep-Dive Podcast that expands on the analysis in conversational form. The podcast explores the historical context, legal doctrine, and real-world consequences in greater depth, including areas that benefit from narrative explanation rather than footnotes.
These materials are intended to supplement—not replace—the written analysis. Each offers a different way to engage with the same underlying record, depending on how you prefer to read, listen, or review complex legal issues.