State and local governments are increasingly using property law to push back on ICE operations. This report unpacks the viability of these efforts, from banning new detention centers to barring officers from staging operations on city property.
In recent months, the U.S. Department of Homeland Security (DHS) has vastly expanded Immigration and Customs Enforcement’s (ICE) presence across the country, sending thousands of officers to major cities and acquiring new facilities that extend its reach to "almost every US state and major city."1 In response, state and local governments are increasingly turning to property law as they navigate their sometimes fraught relations with the federal government. Some municipalities have imposed moratoriums or regulations on the establishment of new detention facilities.2 Others are barring federal officers from staging operations on state or local property.3 And some have filed lawsuits to combat property-related actions like ICE building a fence across a public municipal road.4
From zoning to trespass to nuisance, property law offers states and localities a range of options for addressing federal actions, but the viability of these pathways is complex. On the one hand, regulation of both public and private property has long been a central arena of state and local power.5 On the other hand, the U.S. Constitution’s Supremacy Clause makes federal law the "supreme law of the land" and allows federal law to override state law when conflicts arise. Consequently, federal courts have long held that states cannot directly regulate the federal government or discriminate against it.6 And some federal laws directly preempt certain state actions.
This report outlines the property-related tools states and localities are using to push back on federal actions and explores the viability of those tools under longstanding federalism principles.7 The first part addresses avenues for regulating or blocking ICE detention facilities. These include regulatory and zoning powers, nuisance-based lawsuits, and less common strategies like cutting off utility service to planned detention facilities. The second part then discusses potential avenues for addressing federal encroachments on public property, such as federal officers’ use of city property for federal operations. This part covers ordinances and executive orders, state tort claims like trespass, and claims under the U.S. Constitution’s Takings Clause for repeated invasions of public property. This part also notes where similar pathways are available for private property.
The law on many of these issues is murky and contested. While many of these disputes will ultimately play out in court, this report sketches some guiding principles from existing case law. For one, the viability of state and local regulation varies depending on the type of property being regulated. State and local power is at its height when addressing use of their own property and at its weakest when regulating federally owned property. Privately owned detention facilities fall somewhere in between, with the scope of permissible regulation typically depending on the extent of interference with a federal function. Second, states and localities generally cannot discriminate against the federal government by singling out federal entities or contractors for heightened regulations. Third, where state law merely reinforces or aligns with existing requirements in federal law, like Fourth Amendment warrant requirements, it is less likely to run into Supremacy Clause hurdles. Where it instead conflicts with or acts as a ban on specific federal functions, it is more likely to be struck down. And, finally, where federal law itself provides an avenue for relief, Supremacy Clause hurdles fall away altogether because there is no intergovernmental conflict. This report delves into how these principles may manifest in the host of property-related actions playing out today.
In recent months, ICE and DHS have expanded their physical footprint considerably. According to one report, "more than 150 leases and office expansions have or would place new facilities in nearly every state, many of them in or just outside of the country’s largest metropolitan areas."8 Meanwhile, DHS has acquired at least 10 warehouse sites this year and plans to hold as many as 7,000-10,000 people in some of the detention centers, raising serious concerns about safety, sanitation, and humane conditions.9
This mass federal expansion is setting up clashes with state and local governments. Some oppose ICE’s operations on policy grounds and are seeking to limit its footprint in their communities; others are objecting based on concerns about massive detention centers straining local infrastructure, like sewage and water systems. The methods of pushback vary: some states and localities are enacting bans or procedural hurdles for new detention facilities; some are threatening to bring public nuisance cases and other lawsuits against massive detention centers; and at least two cities have cut off or capped water service for planned detention facilities.10
The viability of these efforts to regulate or block ICE facilities is contested and turns largely on how courts apply the Supremacy Clause. Under the Supremacy Clause’s intergovernmental immunity doctrine, states and localities cannot (1) "regulate the United States directly," or (2) "discriminate against the Federal Government or those with whom it deals."11 Additionally, federal laws can preempt state and local laws if the two conflict or if federal law occupies an entire field.
This part provides guidance on how these federalism doctrines and other federal procedural hurdles may interact with various state and local efforts to regulate or block ICE detention facilities. The first section identifies principles for land use and other regulatory efforts. While states and localities have some leeway to regulate privately owned and operated detention facilities, they have very limited ability to regulate federally owned ones. This reality is spurring state and local officials to explore options for addressing the rise of large-scale federally owned facilities beyond direct regulation. The second section turns to one of these alternate pathways: nuisance lawsuits. States and localities can potentially bring claims under state nuisance law or under the federal common law of nuisance for harms, like pollution, arising from ICE detention facilities. Such suits will face a range of substantive and procedural hurdles but may offer an avenue for addressing some harms. The third section then briefly discusses other forms of property-related pushback, like cutting off utilities, deterring private or public property owners from selling to the federal government, or suing to enforce federal procedural rules for siting and building new facilities.
First, states and localities in recent months have enacted a series of ordinances or laws regarding detention facilities or have enforced existing requirements against ICE facilities. These measures range from permitting processes and conditions to outright bans on detention centers.
For example, Greensboro, North Carolina, amended its land use ordinance in February to require special-use permits for detention facilities and impose new limitations on where they can be located.12 Kansas City, Missouri, passed a resolution in January imposing a five-year ban on non-municipal detention facilities.13 And Howard County in Maryland passed a law in February prohibiting the issuance of county permits for privately owned detention centers.14 These are just a few of the local jurisdictions that have adopted or are considering similar measures.15
Other recent efforts have involved enforcing preexisting requirements. Leavenworth, Kansas, for example, successfully required a private contractor to go through a formal process under city regulations before it could reopen its ICE detention facility.16 And in Portland, officials have been tracking a privately owned/federally leased ICE facility’s violations of a permit condition that prohibits the facility from detaining anyone overnight or for more than 12 hours.17 From October 2024 to July 2025, records showed 25 violations of this condition,18 and the city has started a process that can lead to fines or revocation of the conditional land use approval.19
Control over land use has long been a "mainstay of local government power,"20 but the federal government is exempt from many local regulations under the intergovernmental immunity doctrine. The viability of regulations of ICE detention facilities thus hinges largely on the question of whether the facility is owned and operated by private contractors or by the federal government itself. States and localities have far more leeway to regulate the former than the latter. This section unpacks each of these in turn.
DHS has long contracted with private companies to own and/or operate its detention facilities. Two of the biggest contractors are GEO Group, which operates 19 facilities, and CoreCivic, which operates at least 10.21 Both posted record earnings in 2025 amid the Trump Administration’s increased detentions.22
States and localities have far more leeway to impose regulations on federal contractors than they can impose on the federal government itself.23 But this power is not absolute.
First, regulations cannot discriminate against federal contractors, such as by selectively banning them or imposing heightened regulations relative to other entities.24 The appropriate comparator for private ICE detention facilities is debated.25 The Ninth Circuit has compared them to other private civil detention facilities in the state, like mental health hospitals where individuals are involuntarily committed.26 In doing so, it rejected the idea that civil detention should be compared to criminal detention facilities, like state or local prisons or jails.27 Applying the Ninth Circuit’s approach, a regulation applying solely to privately owned facilities that contract with DHS would be discriminatory, whereas one applying to all privately owned civil detention facilities would not.28
The second, more complex question is whether a regulation imposed on a private contractor—that does not by its terms apply to the federal government—nevertheless amounts to a direct regulation of the federal government. This area is unsettled, with some judges concluding that such indirect regulations, by definition, do not amount to direct regulation. But the view that has largely prevailed so far instead looks at the extent to which the regulation obstructs or controls some federal function. Under this view, less burdensome regulations are more likely to survive whereas more burdensome ones—like outright bans—may be struck down.
On the less burdensome side, courts have allowed states and localities to impose health and safety regulations, minimum wage laws, and land use permitting requirements on privately operated ICE detention facilities. For example, the Ninth Circuit in 2025 held that Washington state could require a GEO Group-run ICE detention facility in Tacoma to provide "sanitary, hygienic, and safe conditions."29 The same year, it also concluded that Washington’s Minimum Wage Act could be applied to require GEO Group to pay minimum wage to detained persons who performed work at the facility.30 Similarly, in Leavenworth, Kansas, a state court and federal court rejected CoreCivic’s effort to skip the city’s special use permitting process to reopen its previously shuttered detention facility. The federal court dismissed the case without an opinion in November 2025.31 And in February 2026, the Kansas Appeals Court ruled that the zoning laws did not violate intergovernmental immunity because the city was "attempting to enforce its generally applicable permitting procedures" and there was no evidence that the city was specifically discriminating against CoreCivic as a federal contractor.32
On the other end of the spectrum, two federal circuit courts have struck down outright statewide bans on private detention facilities.33 The challenged bans in California and New Jersey did not by their terms apply to the federal government; they instead banned private entities from operating detention facilities. But the bans would have required the federal government to buy and operate its own facilities if it wanted to detain immigrants in those states. The Ninth and Third Circuits both reasoned that imposing that limitation amounted to a direct regulation of the government and therefore violated intergovernmental immunity.34 The Ninth Circuit also concluded that California’s ban was preempted because it conflicted with federal law giving the DHS secretary the responsibility to "arrange for appropriate places of detention."35
These two decisions, however, are not the only view. In dissents in the Ninth and Third circuit cases, Chief Judge Mary Murguia and Judge Thomas Ambro, respectively, argued that "direct" regulation does not include regulations that, by their terms, only apply to private contractors—even if the regulation clearly impacts federal contracting for detention facilities.36 They both argued that preemption is the better avenue for dealing with these types of federalism clashes. For example, Congress could have passed a law explicitly overriding New Jersey’s or California’s bans on private detention facilities. But because it had not—and because the dissenting judges concluded no other existing laws clearly preempted the states’ regulations—they argued that the laws should have survived.37 Similarly, the Seventh Circuit ruled in 2022 that an Illinois law prohibiting state and local entities from contracting for immigration detention did not amount to direct regulation of the federal government, despite its clear impact on the federal government’s ability to use publicly owned detention facilities.38 Rather, the court concluded, it "directly regulates only State and local entities and law enforcement."39 (Notably, however, that ban did not apply to private detention centers.)
In sum, the scope of permissible state and local regulation of private detention facilities is highly contested. Regulations that amount to outright bans will face the steepest hurdles in court, while regulations that instead impose various permitting or health and safety requirements will be more likely to prevail. But neither end of this spectrum has guaranteed outcomes. And, regardless of the degree of burden, regulations cannot single out federal contractors for differential treatment without violating the non-discrimination prong of intergovernmental immunity.
In contrast, states and localities have a far more limited ability to regulate federally owned detention facilities. Under the intergovernmental immunity doctrine, state and local governments typically cannot halt, seriously impair, or control federal construction, though some regulations, like those governing the health and safety of construction workers, might still apply. The federal government’s shift to buying up warehouses and creating large-scale federally owned ICE detention facilities could therefore allow it to more easily skirt local regulations and processes. However, the exact scope of intergovernmental immunity in this realm is also contested, and courts do not always clearly explain whether they are ruling on preemption or intergovernmental immunity grounds. This section merely aims to provide an overview of several core takeaways from existing case law.
First, the most concrete principle is that states cannot completely ban federally owned facilities. Immigration detention is a specifically authorized federal function. Federal law gives the DHS Secretary responsibility to "arrange appropriate places of detention" for individuals in immigration custody40 and provides procedures for doing so.41 State laws banning civil detention facilities entirely—including federally owned ones—would therefore run afoul of intergovernmental immunity and/or preemption doctrines.
Second, courts have repeatedly struck down local efforts to apply zoning laws and building codes to federal buildings and properties.42 In particular, courts have emphasized that states and localities cannot require the federal government to get their permission to move forward with projects. For example, even where a federal statute requires compliance with certain state regulations, the U.S. Supreme Court has held that, absent clear congressional language, states cannot forbid a federal facility to operate absent state permission.43 The Court wrote in Hancock v. Train that "[b]ecause of the fundamental importance of the principles shielding federal installations and activities from regulation by the States, an authorization of state regulation is found only when and to the extent there is ‘a clear congressional mandate,’ ‘specific congressional action’ that makes this authorization of state regulation ‘clear and unambiguous.’"44 Importantly, as discussed further below, this standard only applies to state and local regulation that actually conflicts with or acts as a prohibition on federal activities—some less intrusive regulations may survive even on federal property.45
While some federal environmental laws do require federal properties to comply with state regulations and processes,46 the federal building code law, 40 U.S.C. § 3312, does not. Instead, it requires any federal project involving "construction or alteration of a building" to comply "to the maximum extent feasible" with various nationally recognized building codes but only requires "consideration of" local or state zoning laws.47 The statute does require federal officials to cooperate with state and local officials by consulting with them, submitting plans for review, and allowing inspections.48 Federal officials also must give "due consideration" to state and local recommendations.49 But the statute does not explicitly require the federal government to ultimately comply with local zoning processes or requirements.50 There is also a waiver provision that the federal government can invoke to override the statute’s requirements if they "would adversely affect national security."51 Other statutes regarding urban land use require a greater degree of cooperation but still only require the General Services Administrator to comply with zoning regulations "to the extent the Administrator determines is practicable."52 These statutes thus do not provide a "clear congressional mandate" for subjecting federal buildings to local zoning permitting processes, and courts may even conclude that the building code statute preempts state and local zoning laws to the extent that such laws do not violate intergovernmental immunity independently.53
Absent a significant shift in how courts approach these issues, the most viable avenues for state and local regulation of federally owned facilities are likely (1) federal statutes that explicitly dictate compliance with state or local laws, or (2) state or local regulations that do not directly control federal operations or amount to a "prohibition" on the federal government, such as labor standards for private construction workers on federal projects or possibly regulations governing private contractors operating the facility.
For the first avenue, some federal laws do require compliance with local standards and processes. Several environmental laws require federal facilities to comply with state and local regulations on water pollution, air pollution, solid and hazardous waste, and protection of public water systems.54 However, each of these provisions grants the president the ability to exempt federal facilities from such requirements when in the "paramount interest" of the United States.55 President Trump has used this power widely, issuing more than 100 exemptions from the Clean Air Act.56 A thorough review of these environmental laws and the permissible circumstances for presidential exemptions is beyond the scope of this report, but these laws may offer a pathway for states to address detention-related issues like an overburdening of sewage systems or contamination of water supplies. For example, Pennsylvania officials have sent notices to DHS informing it that housing people in two planned facilities would violate state water regulations, which apply to the federal government under the Clean Water Act and the Safe Drinking Water Act.57 Additionally, as discussed further in section I.C, states and localities may be able to sue to enforce the procedural requirements in federal building-related laws, such as conducting environmental impact assessments or notifying urban governments about land acquisitions.58
Second, some state or local regulations that affect federal facilities may survive where they only minimally burden federal operations and are non-discriminatory. As the Supreme Court has explained, "[n]either the Supremacy Clause nor the Plenary Powers Clause bars all state regulation which may touch the activities of the Federal Government."59 And a law is not unconstitutional "just because it indirectly increases costs for the Federal Government, so long as the law imposes those costs in a neutral, nondiscriminatory way."60 In a 1940 case, for example, the Court upheld the application of a New York labor law requiring safety planking over steel beams during construction of a federally owned post office.61 The Court noted that "[w]here enforcement of the state law would handicap efforts to carry out the plans of the United States, the state enactment must, of course, give way."62 But because the planking safety requirement would not significantly increase the cost of construction and applied to the construction contractor rather than the government itself, the Court concluded that it would remain in effect absent congressional action. Thus, some state regulations that do not halt or seriously impair the federal government’s plans could potentially survive, particularly where such regulations apply to the contractors building or operating the facility63 and particularly where the regulations predate the government’s purchase of the property.64 But the scope of permissible regulations on this front is unclear and contested.
Additionally, as discussed in section I.B, regulations cannot discriminate against the federal government. In other words, state or local regulations cannot disfavor the federal government relative to other similarly situated entities. This discrimination analysis may play out differently for federally owned facilities than for privately owned facilities. As discussed above, the Ninth Circuit has compared state regulation of private ICE detention facilities to state regulation of other private civil detention facilities, like a private mental health hospital where individuals may be involuntarily committed. However, for federal, publicly owned ICE facilities, courts might compare the treatment with other publicly owned civil detention facilities, like a state-owned mental health hospital with involuntary commitment, or even public criminal detention facilities, like state prisons and local jails.
Overall, existing case law suggests that state and local efforts to regulate federally owned detention facilities will often be preempted or violate the direct regulation prong of intergovernmental immunity. This reality is leading local and state governments to consider a wider range of options. The next two sections turn to additional property-related pathways states and localities are utilizing or exploring.
Some state and local governments are exploring the viability of nuisance-based lawsuits against planned detention facilities as an alternative to enacting regulations. Arizona Attorney General Kris Mayes, for example, is considering whether to bring a public nuisance lawsuit to halt the construction of a 1,500-bed ICE detention center in a warehouse in Surprise, Arizona.65
Nuisance is a longstanding property-related doctrine that provides an avenue for challenging substantial and unreasonable harm from a wide range of activities, including pollution, noise, or odors.66 While the specifics of nuisance law vary considerably between jurisdictions, states and localities could potentially pursue nuisance claims against large-scale federal detention facilities based on pollution of waterways, overburdening of sewage systems, depletion of public water supplies, increase in pollution and noise from heightened vehicle traffic, bright outdoor lighting overnight, use of tear gas outside the facility, and more.67 Indeed, "a nuisance may result from an unlimited variety of fact situations."68 "The broad indefinite measuring rule is that a person must so control and use his property as to prevent injury to others in the rightful use of themselves and their property."69
There are two primary pathways for bringing nuisance-based claims: state law and federal common law. State-law claims will face significant procedural and substantive hurdles, including many of the same intergovernmental immunity limits as are outlined in section I.A. In contrast, federal common law is free of many of these constraints—for instance, intergovernmental immunity is not implicated because the claim stems from federal law rather than state law. But the federal common law of nuisance has narrowed substantially in recent decades and can come with downsides, including potentially preempting state law. This section first unpacks the viability of state-law nuisance claims, then turns to federal common-law nuisance claims.
State-law nuisance claims variously stem from common law, state statutes, and local ordinances,70 and the specifics vary state to state. Private nuisances are typically "nontrespassory invasion[s] of another’s interest in the private use and enjoyment of land" and can be brought by those who have property rights in the affected land, including city or state owners.71 Public nuisances meanwhile involve conduct that interferes "with a right common to the general public," such as public health, safety, peace, or convenience.72 Public nuisance suits have been used to address everything from obstructions of public roads to fossil fuels, tobacco, and opioids.73 Conduct at ICE facilities that impacts the public, such as pollution or noise, could similarly give rise to public nuisance claims.
In the immigration context, the primary hurdles to state-law nuisance claims stem from (1) preemption and the intergovernmental immunity doctrine and (2) federally imposed procedural hurdles for state tort claims. The preemption and intergovernmental immunity analyses will largely resemble the points outlined in section I.A. The federally imposed procedural hurdles, however, are unique to state tort-law claims and vary based on the remedy sought. Lawsuits seeking monetary damages typically need to proceed through the Federal Tort Claims Act (FTCA), which imposes significant limitations but can sometimes lead to relief. Lawsuits seeking non-monetary relief, like an injunction or declaratory judgment, can avoid the FTCA but may face hurdles from sovereign immunity. This section first briefly discusses the application of intergovernmental immunity and preemption to nuisance suits, then turns to these procedural hurdles.
First, like outright regulatory efforts, state-law nuisance claims must overcome intergovernmental immunity and preemption hurdles. Many of the principles outlined in section I.A will similarly apply to nuisance claims. In particular, where nuisance cases would effectively impose requirements for a federally owned facility that are inconsistent with federal law, courts may conclude that they are preempted or amount to an impermissible direct regulation of the federal government.74 Nuisance cases against privately owned or operated facilities are meanwhile less likely to face intergovernmental immunity hurdles.
Additionally, where a nuisance claim relates to impacts on a state or local property, it may be more likely to succeed. A federal district court in California, for example, recently allowed an individual’s nuisance claim to proceed against the federal government for creating unsafe conditions outside a postal facility stemming from a federally installed drainage culvert under the municipal public sidewalk.75 The court concluded that a municipal ordinance barring obstruction of the right-of-way did not violate intergovernmental immunity because it applied neutrally to all encroachments on public rights-of-ways and did not regulate the post office itself "but only the public sidewalk abutting" it.76 In contrast, courts have dismissed cities’ nuisance claims against dilapidated properties owned by the Department of Housing and Urban Development (HUD) on intergovernmental immunity and/or preemption grounds, ruling that municipalities could not require HUD to repair the properties or comply with local building codes.77
The viability of state-based nuisance lawsuits against federally owned facilities will therefore depend substantially on the degree of interference with a federal function, conflicts with specific federal laws, and the degree to which courts view the lawsuit as governing federal actions on federal property versus federal actions on state or local property.
The other potential hurdles for state-law nuisance claims are procedural and vary based on whether the plaintiff is seeking monetary or non-monetary relief, like an injunction or declaratory judgment.
State tort suits seeking monetary damages typically must go through the procedures outlined in the FTCA.78 Although the FTCA does sometimes lead to monetary relief for those who file claims, it includes "significant exceptions and limitations" that bar recovery in many cases.79 FTCA claims must go through an administrative process before plaintiffs can file in court, and the law provides broad exceptions, including when officers perform "discretionary functions."80 It thus provides only a limited pathway for monetary relief, but it is not an absolute bar. For example, North Dakota successfully brought public nuisance claims under the FTCA for damage from protesters who opposed the Dakota Access Pipeline.81 A federal district court in 2025 concluded that the U.S. Army Corps of Engineers had not followed its own mandatory procedures for issuing special use permits to the protesters and that it had violated its duty to keep the protesters from causing harm.82 (The case is on appeal in the Eighth Circuit.)
Alternatively, states and localities may seek injunctive or declaratory relief instead of monetary compensation. Non-monetary claims do not fall under the FTCA,83 and they consequently face a murkier pathway, hinging on whether courts conclude that Congress has waived sovereign immunity for state tort claims.
A plaintiff can only directly sue the United States or its agencies if Congress has waived sovereign immunity.84 The FTCA, for instance, waives sovereign immunity in certain tort cases, thereby allowing plaintiffs to bring monetary damages claims directly against the United States. In non-monetary cases, the federal government’s primary waiver of sovereign immunity instead stems from the Administrative Procedure Act.85 Section 702 provides that "[a]n action in" federal court "seeking relief other than money damages and stating a claim that an agency . . . acted or failed to act . . . shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party."86 Federal circuit courts have repeatedly held that this "operates as a general waiver of sovereign immunity for actions seeking nonmonetary relief against agencies."87
Whether this waiver applies to state-law tort actions that are brought in federal court, however, is contested. In a recent Texas case discussed further in Part II, the Fifth Circuit squarely concluded that the APA waiver does apply to state common-law tort claims in federal court, holding that "[a]n action in" federal court means any action, not just federal causes of action.88 At least two other circuits have similarly applied the APA waiver to other state-law claims.89 But this application of the waiver to state tort claims remains under-litigated and contested.90 (Such claims also cannot be brought in state court—the federal government has not waived its sovereign immunity there.91)
Alternatively, plaintiffs can also sometimes utilize federal law pathways—particularly the APA—to address property-related harms. The Village of Broadview, for example, brought a lawsuit in October 2025 arguing that the construction of a fence across a public road outside an ICE facility constituted a trespass and a public nuisance and also violated the APA because the agency acted beyond its federal statutory authority.92 In granting the temporary restraining order, the court concluded that the village would likely succeed on the APA claims and did not reach the state tort-law claims.93
In sum, while there will be substantive and procedural complexities to navigate, there may be viable pathways for states and localities to bring state-law nuisance claims to address harm from ICE facilities.
In addition to state-law nuisance claims, states and localities may also be able to bring nuisance claims under federal common law. This pathway faces fewer procedural and intergovernmental immunity hurdles than state-law nuisance claims because the pathway stems from federal, not state law, but it does come with downsides, including a narrow scope and the possibility of preempting state law.
Federal courts have long recognized a federal common law of nuisance that allows parties to bring suits in federal court to stop pollution, particularly in interstate and intergovernmental disputes.94 The Supreme Court first recognized that pollution creates a public nuisance in 190795 and reaffirmed this doctrine in 1972.96 In the immigration context, a federal district court concluded in 1981 that the federal government’s efforts to transfer large numbers of refugees to a fort in Puerto Rico would "give rise to an enjoinable public nuisance."97 In particular, the court noted that the wastewater processing for the high number of individuals would "inevitably exceed" the capacity of the existing plant and would "result[] in the discharge of insufficiently treated sewage" into the Caribbean Sea.98 Based on this issue and other environmental violations, the court ordered a permanent injunction against transfer of refugees to the facility.99 That decision, however, was vacated by the First Circuit after the federal government reached a consent agreement with Puerto Rico on how to operate the facility.100
The scope of the federal common law of nuisance has narrowed significantly since the 1980s. The Supreme Court has concluded that Congress has displaced much of the doctrine with the passage of federal environmental statutes, like the Clean Air Act, which set statutory standards and procedures for handling pollution.101 However, these statutes have not entirely eliminated the doctrine. In a 2011 case, the Supreme Court explicitly noted that there is still space for federal common law, including on environmental protection.102 Months later, the Seventh Circuit concluded in a case against the U.S. Army Corps of Engineers that the federal common law of nuisance extended "to the environmental and economic destruction caused by the introduction of an invasive, non-native organism into a new ecosystem"—specifically, invasive carp.103 The court endorsed the broad definition of public nuisance "as a substantial and unreasonable interference with a right common to the general public, usually affecting the public health, safety, peace, comfort, or convenience."104 In a later ruling on the same case, the court also specifically held that federal agencies could be sued for creating a public nuisance, although it denied the claim on the merits.105
Thus, where the issues are not already covered by federal environmental statutes, states and localities may still be able to bring claims under the federal common law of nuisance.106 This pathway does not face the same procedural hurdles as state common-law claims—the APA’s broad waiver of sovereign immunity for nonmonetary cases more clearly extends to federal common law claims than to state-law claims.107 Additionally, federal common-law claims would avoid intergovernmental immunity and other federalism hurdles since they arise from federal law rather than state law. One potential downside, however, is that the existence of a federal common law pathway can work to preempt competing state tort law.108
Beyond outright regulation and nuisance-based claims, states and localities are pursuing a range of other responses to the development of large-scale ICE detention facilities in their backyards. This section provides a brief overview of three alternative pathways governments are pursuing or could pursue: cutting off utilities, creating hurdles to selling land to the federal government, and suing to enforce procedural building or environmental requirements in federal law.
First, at least two cities have cut off or capped utility services to warehouses the federal government plans to convert to large-scale ICE detention facilities. Officials in Social Circle, Georgia, put a lock on the water meter at the planned detention facility, thereby cutting off water and sewer service to the warehouse.109 The facility is slated to hold up to 7,500 to 10,000 people—an influx that would more than double the city’s current population of 5,500.110 Local officials have repeatedly sought information from the federal government about how they plan to handle water and sewer for the facility, and the city manager said the lock would remain until federal officials respond to the city’s inquiries.111 Salt Lake City officials similarly put a cap on how much water a planned facility can use, citing the city’s concerns about water access amid a drought.112 This type of approach may well survive intergovernmental immunity challenges—it is not clear that the federal government can force municipalities to double their water and sewage infrastructure to accommodate large federal buildings. If this approach singles out the federal facilities for worse treatment than other facilities, it could run afoul of intergovernmental immunity,113 but if states and localities employ a generally applicable standard—like capacity limits or bans on residential uses in industrial areas—it could potentially survive. This approach will likely be the most viable where state and local governments themselves own the utility service or infrastructure—as discussed further in section II.A, when states and localities are acting as a proprietor, they may face fewer Supremacy Clause hurdles than when they are acting as a regulator. But they may also be able to impose neutral rules governing whether and how privately owned utility companies can provide services.114
Second, states and localities may be able to create hurdles to selling land to the federal government in the first place. By keeping property in private, state, or local hands, regulators can retain much more authority over the land and its permissible uses. One option is to prevent public entities in the state from selling publicly owned land to the federal government. This type of measure would likely survive, given that states and localities have broad leeway in deciding how to dispose of their own land.115 In contrast, they likely could not ban private sales to the federal government outright—courts would likely hold that such efforts impermissibly discriminate against the federal government. But states and localities could potentially impose procedural hurdles for the sale of certain private properties, like large warehouses, requiring the owners to disclose information about the buyer, attend public hearings, or engage in other pre-sale steps. In some cases, public pressure campaigns—sometimes coupled with the enactment of local ordinances—have already deterred private developers from selling to the federal government.116 Imposing more hurdles on the pre-sale side may accomplish a similar end. Importantly, through eminent domain, the federal government retains the power to take property and provide just compensation, but this process brings its own hurdles. State and local efforts to block land acquisition may therefore slow or alter the spread of detention facilities, even if they cannot halt it entirely.
Third, states and localities may be able to sue to enforce procedural requirements in federal laws, like federal building or land use laws and the National Environmental Policy Act (NEPA).117 Maryland and New Jersey have both sued to block large detention facilities in their states, arguing that DHS has failed to comply with NEPA’s requirements to assess environmental impacts.118 In mid-April, a federal district court granted a preliminary injunction blocking the Maryland facility, concluding that the case provided "a crystal-clear example" of failure to comply with NEPA.119 Had DHS followed NEPA's requirements, the court wrote, "it likely would have found that the rapid transformation of a cargo-processing facility with four toilets and two water fountains into a temporary residence and workplace for hundreds, if not thousands, would jeopardize the health and safety of the surrounding ecosystem in myriad ways, most notably through the likely over-taxing of the sewer system."120 New Jersey’s complaint also alleges violation of the Intergovernmental Cooperation Act, which directs the federal government to consider, "[t]o the extent possible, all national, regional, State, and local viewpoints … in planning development programs and projects of the United States Government."121 Other federal laws discussed in I.A.ii also lay out procedures for federal land acquisitions and construction that could generate legal claims.122 A full analysis of these federal laws is beyond the scope of this report, but they may offer one of the most straightforward ways to address the federally owned detention facilities that are underway.
* * *
Overall, many state and local efforts are entering minimally charted territory and are likely to face challenges in court. As a general baseline, states and localities have broad power to regulate the use of the land and resources that they directly own. They also have leeway to regulate privately owned land and private contractors, though these efforts may face some intergovernmental immunity and preemption hurdles. They have the least flexibility to regulate federally owned and operated facilities. In some instances, properties will fall under multiple categories—such as a federally owned facility operated by a private contractor. In such cases, these general principles may interact in complex ways—for example, a state could likely still regulate the private contractor’s employment practices but likely could not require the federal property to comply with local building codes. Overall, however, the boundaries of these doctrines are highly contested, and there may be viable avenues for challenging the development of large-scale detention facilities, even when they are federally owned.
In addition to regulating ICE detention facilities, states and localities in recent months have turned to property-related pathways to respond to federal officers’ conduct. Most of these efforts seek to limit federal use of state and local public property. In Broadview, Illinois, local officials successfully sued to remove a fence ICE agents had erected outside the Chicago-area facility on the village’s public road and sidewalk.123 Officials in at least a dozen jurisdictions have passed ordinances or issued executive orders barring federal officers from using public property for federal operations.124 And, in a wide-ranging lawsuit seeking to halt the massive DHS surge in Minnesota in January, city and state officials claimed in part that DHS officers were commandeering St. Paul city property and violating existing laws governing the use of public parking lots by using them as staging locations.125 Additionally, some states and localities have explored public nuisance options for addressing federal conduct that harms public health or safety, particularly federal officers’ use of tear gas.126
Overall, states and localities have substantial leeway to regulate conduct on their own property. State and local governments routinely set rules around who can access public property and when, as well as permissible uses of public property. These regulations can typically apply to federal officers as well—the primary difficulty is enforcement. The Supremacy Clause and various federal laws impose both substantive and procedural hurdles to state and local efforts to enforce regulations against federal officers. State and local enforcement efforts will be most viable where federal officers are also violating federal law, particularly the Fourth Amendment; they will be least viable where federal officers are carrying out actions affirmatively authorized by federal law.
This part discusses three property-related avenues for regulating federal officers’ conduct on state or local property: (1) ordinances and executive orders barring ICE from certain publicly owned property, including the possibility of civil or criminal penalties for individual officers; (2) state tort-law suits, like trespass; and (3) claims under the U.S. Constitution’s Takings Clause for repeated federal intrusions on state or local property. This part also notes where similar avenues may be available for federal conduct on private property, specifically via tort and Takings claims. (States and localities are also using a range of non-property avenues to address federal officers’ conduct, including mask bans, criminal investigations, and civil damages lawsuits, all discussed in other reports.127)
More than a dozen cities and counties in recent months have enacted policies barring federal officials from using public property for ICE operations. These policies vary in scope and form. Chicago’s mayor, for example, issued an executive order in October 2025 prohibiting the use of city-owned lots and garages for immigration staging, processing, or operations.128 Similarly, the San Francisco Board of Supervisors enacted an ordinance in February 2026 barring the use of all city property for immigration enforcement and providing a mechanism for the city attorney to sue any person or entity who violates the ordinance.129 These efforts almost certainly fall within the proprietary power states and localities exercise over their own property, but they may face some hurdles at the enforcement stage.
First, where state and local governments are acting as the proprietor of their own property, rather than a regulator of others’ property, they are less likely to run into intergovernmental immunity issues.130 For example, a federal district court in New York recently upheld a state law barring civil arrests in courthouses absent a judicial warrant, in part because "simply defining, as a proprietor, what activities are not permissible in state-owned facilities … does not run afoul of the intergovernmental immunity doctrine."131 State and local governments routinely set open hours for public parks or buildings, designate buildings or office areas that are not open to the public, or have laws limiting who can enter school grounds.132 Applying these rules and other immigration-specific ones to federal officers likely falls squarely within state and local power. This idea is reinforced by the anticommandeering doctrine, which holds that the federal government cannot require states to assist with federal efforts like immigration enforcement.133 As noted above, St. Paul has already brought an anticommandeering claim against DHS, challenging officers’ use of its parking lots in ways that violate local ordinances.134
The intergovernmental immunity doctrine would likely still constrain regulations governing federal officers’ ability to access properties that are otherwise publicly accessible. States and localities likely could not treat federal officials worse than the general public—for example, by barring ICE officers from driving on public roads.135 But states and localities can likely prohibit federal officers from using public property in ways that deviate from generally allowed public uses—for example, where ordinances specify that a city parking lot can only be used for visiting the adjacent park, the city likely does not need to allow ICE to use it as a staging site.136 Additionally, as in the New York courthouse case, states and localities can typically pass regulations governing specific conduct on state and local property, such as by banning the use of tear gas. (A related report explores this power in more depth, specifically looking at states’ ability to limit immigration enforcement in publicly owned sensitive locations, like schools or courthouses, as well as privately owned ones, like hospitals.)
Although many of these regulations are valid exercises of local or state power, they may face hurdles at the enforcement stage, depending on the facts of the violation and the method of enforcement. First, where states or localities seek to enforce criminal laws governing access to property, such as criminal trespass laws, federal officers could potentially claim Supremacy Clause immunity.137 As discussed in a related report, federal officers can secure immunity from state prosecutions where their actions were necessary and proper in carrying out lawful federal duties.138 The application of this doctrine is highly fact-specific and would arise once a state or locality brings a prosecution—federal officers do not have absolute immunity from state prosecutions.
Similarly, where states or localities seek to impose civil penalties like fines, federal officers might also claim some form of immunity, though there is limited case law on whether Supremacy Clause immunity or intergovernmental immunity would properly apply.139 As the U.S. Supreme Court explained in Johnson v. Maryland, "[o]f course an employee of the United States does not secure a general immunity from state law while acting in the course of his employment," but "even the most unquestionable and most universally applicable of state laws, such as those concerning murder, will not be allowed to control the conduct of a [federal officer] acting under and in pursuance of the laws of the United States."140 The court held that while laws "regulating the mode of turning at the corners of streets" could apply to federal officers, a state could not require a postal worker to obtain a state driver’s license and pay a fee.141 The application of fines to federal officers’ conduct on state or local property will therefore likely hinge on whether the law impedes lawful, federally authorized conduct.
With either civil or criminal penalties, federal officers will likely have immunity when their actions are specifically authorized by federal law—such as a federal statute giving Border Patrol agents the ability to access private lands within 25 miles of the border in order to prevent illegal entries.142 In contrast, fines or prosecutions are most viable where federal officers are also violating federal law or the U.S. Constitution—such as by entering a private area of a city office building without a judicial warrant in violation of the Fourth Amendment.
Lastly, separate from any direct efforts to enforce the regulations discussed in this section, the existence of such regulations is relevant for determining whether or not the federal officers have permission to be on the property, which factors into the state tort-law claims and federal Takings claims discussed below.
In tandem with regulations, state tort law offers another avenue for addressing federal conduct on state or local property. Torts like trespass and nuisance are typically used to recover monetarily from a defendant, but they can also be used to seek non-monetary relief, like injunctions or declaratory judgments.
In some instances, state tort suits may offer a mechanism for enforcing the regulations outlined in section II.A—for example, where federal officers are repeatedly disregarding limitations on their use of public property, the intrusions might amount to a trespass. In other instances, state tort suits may offer an independent pathway for addressing federal conduct—for example, nuisance claims might be available for use of tear gas. Additionally, private individuals may be able to bring similar claims regarding intrusions or harm to private property.
This part provides an overview of property-related torts as applied to federal conduct, then turns to limitations and hurdles. While some of these parallel the hurdles discussed for facility-related nuisance suits in section I.B.ii, state tort claims involving conduct on state or local property (rather than federal property) may face fewer obstacles to relief.
The primary property-related torts are trespass, trespass to chattels, conversion, and nuisance. Trespass generally occurs when someone intentionally enters another’s land without their consent and without some other privileged reason for being there. Trespass to chattels and conversion address harm to personal property instead of intrusions to land. And nuisance, discussed above in section I.B, applies to a wide range of harms to public health, safety, or convenience, potentially including the use of tear gas.143 This section unpacks each of these torts in turn.
First, trespass claims might be available where officers enter private homes or non-public areas of publicly owned property without a judicially signed warrant. Law enforcement officers are typically insulated from trespass claims when they enter property in a way that accords with the Fourth Amendment.144 However, where officers violate the Fourth Amendment, they can potentially face civil trespass claims or criminal trespass charges. Courts have found trespass claims can proceed where law enforcement officers enter property with an invalid warrant, enter unlawfully without a warrant, or unnecessarily damage the property while executing a valid warrant.145
In carrying out immigration arrests, ICE officers routinely use administrative warrants, which are issued by immigration authorities, instead of judicial warrants, which are issued by judges. It has long been understood—and DHS has historically conceded—that these administrative warrants are not sufficient to meet the Fourth Amendment’s warrant requirements and therefore do not authorize ICE to enter non-public areas to make arrests.146 In a recently publicized memo from May 2025, however, DHS reversed course and claimed that officers do have the authority to enter homes with only an administrative warrant—a policy that drew sharp blowback.147 Assuming courts continue to side with the prevailing view that this practice violates the Fourth Amendment,148 trespass claims would be one avenue for addressing these unconstitutional entries, both on private property and on private areas of public property, such as areas of city offices where the public is not allowed to enter.
Additionally, trespass claims could arise where federal officers are on public property in a way that violates rules governing use of that property—for example, by erecting a fence on a public road, as in the Broadview case,149 or using a city parking lot as a staging area for operations where the only lawful uses of the lot are parking to visit the adjacent park or walking to or from vehicles, as in the St. Paul case.150
Trespass to chattels and conversion can meanwhile arise where federal officers damage, interfere with, or take personal property without a lawful justification. Conversion typically applies to more extreme interference like taking or completely destroying property, and trespass to chattels applies to acts with lesser interference or damage.151 Under the Biden Administration, for example, Texas brought conversion and trespass-to-chattels claims against DHS based on Border Patrol agents cutting concertina wire fence that Texas had placed along the Mexico border.152 Balancing the federal immigration enforcement requirements with the state’s property interests, the Fifth Circuit ultimately granted an injunction barring Border Patrol from cutting the wire where it already has "the necessary access to both sides of Texas’s c-wire for immigration law enforcement and emergency purposes."153 Thus, where federal officers damage or take state and local property without a lawful federal authorization, they could face state tort-law claims.
Similar claims might also be available regarding damage to or confiscation of private property, such as where a federal officer smashes someone’s car windows or takes and destroys or sells someone’s cell phone without lawful justification.154 (Federal law may also offer options for seeking the return of property. In particular, Federal Rules of Criminal Procedure 41(g) provides that "[a] person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property’s return" by filing "in the district where the property was seized."155 This procedure can be used to obtain property wrongly seized by ICE officers.156)
Last, nuisance claims may be available to address harms to public rights, like health and safety, or to private property interests. Section II.B above discusses nuisance in more depth as it relates to harms flowing from ICE detention facilities. But nuisance claims may also be available to address other conduct, such as federal officers using tear gas and other chemical irritants in public parks.157 And private property owners may also be able to bring nuisance claims. In Broadview, Illinois, for example, the cabinet manufacturing company located next to the ICE facility has dealt with tear gas entering the plant, workers being hit by pepper balls, and intrusion of other munitions onto its property amid protests outside the Chicago-area facility.158 Plumes of tear gas have similarly infiltrated neighboring homes and yards, irritating children with asthma or preventing families from eating outdoors.159 These property owners could potentially bring private nuisance claims against DHS.
State-law tort claims regarding federal conduct will face substantive hurdles from federal law and the intergovernmental immunity doctrine and procedural hurdles from the FTCA and sovereign immunity. While these hurdles largely parallel those discussed in section I.B.i regarding nuisance claims related to detention facilities, there are some key differences here. For one, state and local governments are less likely to run into intergovernmental immunity concerns where they are addressing conduct on their own property (versus federally owned property). And on the procedural front, trespass claims will often raise Fourth Amendment issues as well, potentially opening another pathway for seeking monetary damages.
First, intergovernmental immunity is less likely to come into play where states and localities are bringing tort claims to address conduct on their own property. In the razor-wire case discussed above, the Fifth Circuit found that because Texas sought "to enforce generally applicable state tort laws against trespass and conversion" and was "acting as a proprietor, not a regulator," the suit did not run afoul of intergovernmental immunity.160 The case also suggested some willingness among U.S. Supreme Court justices to entertain this type of claim—the Court vacated the initial injunction pending appeal in the case after a woman and her two children drowned in an area blocked off by razor wire,161 but Justices Thomas, Alito, Gorsuch, and Kavanaugh would have allowed the injunction to remain in place.162 The Fifth Circuit’s subsequent reinstatement of an injunction after further proceedings then went unchallenged before the Court. Overall, given the propriety interests involved, tort suits that address harms to state or local property may be more likely to prevail than state-tort suits aimed at federal detention facilities.
That said, federal law will sometimes preempt specific types of tort claims or narrow the scope of relief. In the Texas case, for example, "[b]oth the Border Patrol and Texas agree[d] that the c-wire must be cut in the event of a medical emergency or to enforce federal immigration law."163 The injunction thus only barred cutting the razor wire where Border Patrol already has "the necessary access to both sides of Texas’s c-wire for immigration law enforcement and emergency purposes."164 Similarly, a federal statute discussed in the case gives Border Patrol agents access to private lands to patrol within 25 miles of the border to prevent illegal entries.165 Where officers comply with this statute (and the Fourth Amendment, which generally does not extend to "open fields"166), they cannot be held liable for trespass, even if state law would authorize such a claim. But the federal statute also provides that agents are not allowed to access dwellings. If agents "were nonetheless barging into dwellings in violation of the statute," the Fifth Circuit wrote, the Supremacy Clause "of course" would not "prevent a homeowner’s trespass suit."167 Thus, state-law tort claims will likely only be viable where federal law does not independently authorize the intrusion or other harm to property.168
On the procedural front, meanwhile, state tort-law claims for monetary damages will typically proceed via the FTCA,169 and claims for non-monetary relief will have to clear federal sovereign immunity hurdles or proceed via the APA, as discussed in section I.B.ii. In the context of trespass and property damage claims, however, plaintiffs are typically also making a constitutional claim: that the officer violated the Fourth Amendment. This may open additional avenues for monetary claims. The Westfall Act, which generally makes the FTCA the exclusive pathway for tort claims against federal officers, includes a carveout for actions "brought for a violation of the Constitution of the United States."170As discussed in another report, this leaves open the option for state-created causes of action for federal officials who violate constitutional rights.171 Under these so-called "converse-1983" laws, which already exist in some states and are being introduced elsewhere,172 plaintiffs could sue to recover monetary damages for harm stemming from a Fourth Amendment search-and-seizure violation instead of pursuing a trespass claim for the same harm.173
Overall, states, localities, and individuals may be able to pursue both monetary and non-monetary relief related to federal intrusions on or harm to public property. While federal law presents several hurdles to state tort-law claims, it does not entirely close the door on relief.
Finally, some legal scholars have suggested that the U.S. Constitution’s Takings Clause could offer an alternative pathway for combatting federal conduct on state and local property (or, potentially, private property). In particular, the Supreme Court recently expanded Takings doctrine in ways that could potentially open the door for challenging federal officers’ repeated intrusions on public or private property.
The Takings Clause in the U.S. Constitution provides: "nor shall private property be taken for public use, without just compensation."174 The most straightforward application of this clause involves situations where a federal, state, or local government physically takes private land for some public purpose, such as by converting private land into a public road.175 In such cases, the government must provide "just compensation" (typically fair market value) to the owner. The same principle applies when the federal government takes state or local public property—courts simply treat state and local governments like private property owners.176
Courts also recognize "regulatory takings," whereby regulations that "‘go[] too far’ in extinguishing property rights can trigger the compensation requirement," even if they do not directly appropriate physical property.177 These cases are typically difficult to win. Where the regulations (1) "compel the property owner to suffer a physical ‘invasion’ of his property" 178 (in a famous case, a TV cable box on an apartment building179) or (2) "den[y] all economically beneficial or productive use of land,"180 courts may find a per se regulatory taking. In other regulatory cases, courts apply a balancing test that typically favors the government.181
In 2021, the U.S. Supreme Court in Cedar Point Nursery v. Hassid182 loosened the standard for treating regulations as per se takings. Blurring the line between regulatory and physical takings,183 the Court concluded that a California regulation allowing union organizers to enter private land to talk to agricultural workers on a limited basis constituted a physical appropriation and was therefore a per se taking.184
As Professors Aziz Huq and Zachary Clopton have argued, this expansion of Takings doctrine provides a potential avenue for states "to resist federal access to state and local buildings."185 As they write, "[u]nder Cedar Point’s ruling that ‘a physical appropriation is a taking whether it is permanent or temporary,’ the federal government’s ‘access’ demand to state and local buildings—be they schools or courthouses or prisons—is a per se taking under the Fifth Amendment."186 States could therefore sue for compensation under the Takings Clause or could potentially seek to enjoin these federal intrusions.187
The exact limits of Cedar Point and its exceptions have not yet been fully fleshed out,188 so the viability of this type of claim remains unclear. If officers do have a valid judicial warrant and are acting in accordance with the Fourth Amendment, they can certainly enter property under Cedar Point’s law enforcement exception without effecting a taking.189 Conversely, if officers do not have a valid judicial warrant and enter unlawfully, then courts might instead characterize it as an "isolated physical invasion" more properly analyzed under trespass than Takings doctrine.190 But Cedar Point’s exception for trespass notably only applies to "[i]solated physical invasions, not undertaken pursuant to a granted right of access."191 Where federal officers repeatedly invade a property without a warrant or where the federal government is purporting to grant a right of access to federal officers, access-based takings claims may be more viable.192 And federal officials do seem to be claiming a broad right of access—in the May 2025 memo, discussed above, DHS claimed it has the authority to enter private areas with only an administrative warrant; and some federal officials are claiming a broad right to access public property, like courthouses, to conduct civil arrests.193 Additionally, as noted above, a federal statute allows Border Patrol agents to access private lands within 25 miles of the border in order to prevent illegal entries.194 These broader policies or repeated entries could give rise to viable Takings claims under Cedar Point, both for publicly owned and privately owned property.
Procedurally, Takings claims play out differently than many constitutional cases. Claims for "just compensation" above $10,000 must be filed in the U.S. Court of Federal Claims, an Article I court that generally has no authority to grant equitable or declaratory relief.195 If plaintiffs are instead seeking a declaratory judgment or an injunction, they have to file those claims in the regular, Article III federal courts.196
Neither sovereign immunity nor the Supremacy Clause poses a significant hurdle to federal Takings claims. The APA waives sovereign immunity for non-monetary claims,197 and the Tucker Act waives sovereign immunity for monetary claims in the Court of Federal Claims.198 Additionally, because the Takings Clause is a federal constitutional provision, it does not face Supremacy Clause roadblocks, such as intergovernmental immunity or preemption. Thus, the primary limitations on relief stem from Takings doctrine itself rather than any outside immunity.
* * *
Overall, states and localities have a range of options for regulating conduct on and access to their own property, and many of these efforts will face fewer legal hurdles than efforts to regulate federally owned property, like new ICE detention facilities. While federal laws and procedures may impose some enforcement obstacles, states and localities have successfully brought cases to address federal immigration-related actions that unduly infringe on or harm public property. And many similar avenues are available for private property owners, particularly where federal officers are entering private property without a judicial warrant.
In the coming months, the complex fight over the federal government’s use of property for ICE operations and detention centers will continue to play out, both in and out of courts. The federal government and its contractors will likely seek a maximalist view of federal supremacy, while states and localities will likely continue to seek avenues for pushback, exerting regulatory or proprietary control where they can.
Under existing case law, states and localities have the most power when they are regulating conduct on or access to their own property. They also have quite a bit of power to regulate private contractors and privately owned properties, as long as they do not discriminate based on the contractor’s status as a federal contractor or impose regulations that directly conflict with federal law. Some especially stringent regulations—like outright bans on private detention facilities—may run into Supremacy Clause hurdles, but this analysis is contested. States and localities have the least power when it comes to regulating federally owned facilities, but some state and local regulation may survive, and federal environmental and nuisance laws offer additional legal options. Beyond regulation and lawsuits, states and localities may also be able to utilize self-help measures to address concerns about large detention facilities, such as withholding utility services.
As these disputes continue to play out, the boundaries of these murky doctrines may shift. But the bottom line is that, while the Supremacy Clause and federal laws place important constraints on what states and localities can do, these public actors—as well as private actors—still have some avenues for ensuring the federal government and its contractors are not overreaching.
1 Leah Feiger, ICE Is Expanding Across the US at Breakneck Speed. Here’s Where It’s Going Next, Wired (Feb. 10, 2026, at 11:05 ET), https://www.wired.com/story/ice-expansion-across-us-at-heres-where-its-going-next/; see also Jamiles Lartey, ICE Is Buying Warehouses. Communities Are Fighting Back., The Marshall Project (Feb. 14, 2026, at 12:00 ET), https://www.themarshallproject.org/2026/02/14/ice-arizona-texas-georgia-warehouse.
2 See infra notes 12–15.
3 See infra note 124.
4 See infra notes 125-26.
5 See, e.g., Solid Waste Agency of N. Cook Cnty. v. U.S. Army Corps of Engineers, 531 U.S. 159, 174 (2001) (narrowing federal statutory interpretation where alternative "would result in a significant impingement of the States’ traditional and primary power over land and water use"); Vill. of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 397 (1926) (zoning is within local governments’ police power); California Coastal Comm’n v. Granite Rock Co., 480 U.S. 572, 580 (1987) (U.S. Constitution’s Property Clause does not "exempt[] federal lands from state regulation whether or not those regulations conflict with federal law").
6 McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 432 (1819) ("If the states may tax one instrument, employed by the government in the execution of its powers, they may tax any and every other instrument … to an excess which would defeat all the ends of government.").
7 This report does not differentiate between state versus local actions, as the federalism analyses generally remain the same. However, local governments may face additional hurdles from within their states, depending on how state law defines the scope of local power. This report does not delve into those limitations, which vary considerably state to state and between localities.
8 Feiger, supra note 1.
9 Heather Hollingsworth, Immigration Officials Plan to Spend $38.3 Billion to Boost Detention Capacity to 92,000 Beds, AP News (Feb. 13, 2026, at 17:08 PT), https://apnews.com/article/ice-detention-facilities-expansion-warehouses-c61c3e23c4246e94a760b4d979cb9c48; Allison McCann, Helmuth Rosales & Erin Rabinowitz, How ICE Plans to Put 8,500 Immigrants in This Warehouse, N.Y. Times (Mar. 9, 2026), https://www.nytimes.com/interactive/2026/03/09/us/politics/ice-georgia-immigration-social-circle-warehouse.html; Updated Statement: Regarding ICE Detention Facility 2/18/2026, Soc. Circle Ga. (Feb. 18, 2026, at 18:48 ET), https://www.socialcirclega.gov/Home/Components/News/News/241/; Heather Hollingsworth & Morgan Lee, ICE’s Purchases for Big Detention Centers Are Marked by Secrecy, Frustrating Towns, AP News (Feb. 21, 2026, at 20:54 PT), https://apnews.com/article/immigration-detention-centers-pushback-24e702da67281a672b0f77287aaa87ba; Kevin Hardy, Communities Fight ICE Detention Centers, but Have Few Tools to Stop Them, Stateline (Feb. 17, 2026, at 5:00 CT), https://stateline.org/2026/02/17/communities-fight-ice-detention-centers-but-have-few-tools-to-stop-them/; Connor Greene, ICE Is Seeking to Build New Detention Centers Around the U.S. Here’s How Communities Are Battling to Stop It, Time (Feb. 5, 2026, at 15:36 PT), https://time.com/7371935/ice-immigration-trump-detention-warehouse-protests/.
10 Lautaro Grinspan, Georgia Town Defies ICE: No Water for Planned Detention Warehouse, The Atlanta J. Const. (Mar. 18, 2026), https://www.ajc.com/news/2026/03/georgia-town-defies-ice-no-water-for-planned-detention-warehouse/; Annie Knox, Eyeing Planned ICE Detention Center, Salt Lake City Puts Limits on Water Use, News from the States (Mar. 25, 2026), https://www.newsfromthestates.com/article/eyeing-planned-ice-detention-center-salt-lake-city-puts-limits-water-use%C2%A0.
11 United States v. Washington, 596 U.S. 832, 838–39 (2022).
12 Sayaka Matsuoka, ‘Not One, Not Two, But Now, Three Levels of Scrutiny’, The Thread (Feb. 20, 2026), https://greensborothread.com/news/politics/greensboro-nc-ice-detention-council-zoning/; Greensboro Zoning Code §§ 30-8-10.2; 30-15-18.
13 Sam Hartle, Kansas City, Missouri, Passes 5-Year Ban Prohibiting Non-Municipal Detention Facilities, KSHB (Jan 15, 2026, at 20:13 CT), https://www.kshb.com/news/local-news/kansas-city-missouri-passes-5-year-ban-prohibiting-non-municipal-detention-facilities.
14 Howard County Executive Calvin Ball Signs Emergency Legislation Prohibiting Permits for Private Detention Centers, Howard Co. Md. (Feb. 6, 2026), https://www.howardcountymd.gov/News020626.
15 See, e.g., Jordan Laird, Columbus Council Passes Laws Aimed at Curbing Immigration Authorities, The Columbus Dispatch (Feb. 23, 2026, at 19:23 ET), https://www.dispatch.com/story/news/politics/2026/02/23/columbus-weighs-legislation-aimed-at-ice-prompting-fop-response/88784020007/?gnt-cfr=1&gca-cat=p&gca-uir=true&gca-epti=z117161p119950l004450c119950e1107xxv117161d--43--b--43--&gca-ft=180&gca-ds=sophi; Adam Powell, El Paso City Council Okays Plan to Halt New ICE Detention Facilities, El Paso Times (Feb. 3, 2026, at 15:31 MT), https://www.elpasotimes.com/story/news/immigration/2026/02/03/el-paso-city-council-pursuing-plan-of-action-to-stop-new-ice-facilities/88491739007/; Matt Swearengin, Council Approves Ordinance That Would Require Permit for a Detention Center, Durant Democrat (Jan 20, 2026), https://www.durantdemocrat.com/news/council-approves-ordinance-would-require-permit-detention-center; Kevin Hardy, Communities Fight ICE Detention Centers, but Have Few Tools To Stop Them, Stateline (Feb. 17, 2026, at 5:00 CT), https://stateline.org/2026/02/17/communities-fight-ice-detention-centers-but-have-few-tools-to-stop-them/ (discussing proposals in Jackson County, Missouri, and Wyandotte County and Kansas City in Kansas).
16 Zane Irwin, Leavenworth, Kansas, Could Become a Hub for Immigration Detention. Opposition Is Mounting, KCUR (Apr. 22, 2025, at 3:00 CT), https://www.kcur.org/politics-elections-and-government/2025-04-22/leavenworth-kansas-hub-immigration-detention-corecivic-locals-opposed-private-prison; Matthew Kelly, CoreCivic Reverses Course, Asks Leavenworth for Permission to Operate ICE Prison, The Star (Dec. 9, 2025, at 13:12 CT), https://www.kansascity.com/news/politics-government/article313551328.html.
17 Anna Griffin, To Fight ICE, Portland’s Leaders Turn to What They Know Best: Zoning, N.Y. Times (Oct. 20, 2025), www.nytimes.com/2025/10/20/us/politics/portland-ice.html; About the ICE Facility, Portland.gov, https://www.portland.gov/federal/about-ice (last visited Feb. 21, 2026). Under Portland’s zoning laws, detention facilities can only exist if they obtain conditional use approval, which can include conditions on usage. Portland, Or. Plan. & Zoning Code § 33.815.205 (Detention Facilities).
18 Land Use Violation at the ICE Facility, Portland.gov (last updated Feb. 13, 2026), https://www.portland.gov/federal/about-ice/ice-land-use-violation.
19 Id.
20 Ashira Pelman Ostrow, Process Preemption in Federal Siting Regimes, 48 Harv. J. Legis. 289, 294 (2011); see also Beaver v. Tarsadia Hotels, 816 F.3d 1170, 1179 (9th Cir. 2016) (presumption against preemption "carries the ‘greatest force’ when federal legislation encroaches on an area traditionally occupied by the states, such as the field of property law") (quoting CTS Corp. v. Waldburger, 134 S.Ct. 2175, 2189 (2014)), overruled on other grounds by Ratha v. Rubicon Res., LLC, 168 F.4th 541 (9th Cir. 2026); In re Davis, 170 F.3d 475, 481 (5th Cir. 1999) ("Deference to our federalism counsels a presumption that areas of law traditionally reserved to the states, like police powers or property law, are not to be disturbed."). "The federal government left land use to the states; the states, in turn, empowered municipalities to enact zoning laws to guide planning and development decisions." Ostrow, supra, at 289. Zoning laws typically dictate whether and where certain land uses—like housing, businesses, or factories—are allowed.
21 Philip Wang, ICE’s Largest Prison Contractors Hail ‘New Growth Opportunities’ as Revenue Reaches All-Time High, Times (Feb. 12, 2026, at 14:14 PT), https://time.com/7378284/ice-immigration-detention-contractors-record-revenue/.
22 Id.
23 Geo Grp., Inc. v. Inslee, 151 F.4th 1107, 1112 (9th Cir. 2025) (quoting Geo Grp., Inc. v. Newsom, 50 F.4th 745, 750 (9th Cir. 2022)).
24 See, e.g., United States v. King Cnty., Washington, 122 F.4th 740, 757–58 (9th Cir. 2024) (concluding that county executive order banning contractors at a state airport from servicing ICE flights "discriminatorily burdens the United States specifically because of federal immigration operations, based on the County’s disagreement with federal policy").
25 See David S. Rubenstein & Pratheepan Gulasekaram, Privatized Detention & Immigration Federalism, 71 Stan. L. Rev. Online 224, 234–35 (2018-2019).
26 Inslee, 151 F.4th at 1118–22.
27 See id. at 1120 ("GEO has consistently argued that the appropriate comparator to the NWIPC is Washington's prisons.").
28 See id. at 1118–22.
29 Id. at 1112, 1114; see also GEO Grp., Inc. v. City of Tacoma, 3:18-CV-05233-RBL, 2019 WL 5963112 (W.D. Wash. Nov. 13, 2019) (unreported) ("GEO seems to believe that its relationship with ICE provides a complete shield against any regulation, but that is incorrect. A federal contractor’s immunity is limited by the scope of its obligations to the U.S. government.").
30 Nwauzor v. GEO Grp., Inc., 127 F.4th 750 (9th Cir. 2025) (concluding Washington’s Minimum Wage Act could be applied to require ICE detention contractor to pay state minimum wage to civil detainees who performed work for the contractor and did not amount to a direct regulation).
31 See Complaint, CoreCivic, Inc. v. City of Leavenworth, No. 2:25-cv-2457 (D. Kan. Aug. 8, 2025); Civil Minute Sheet, CoreCivic, Inc. v. City of Leavenworth, No. 2:25-cv-2457 (D. Kan. Nov. 25, 2025) (denying plaintiff’s motion for a preliminary injunction and granting defendant’s motion to dismiss).
32 City of Leavenworth v. CoreCivic, Inc., No. 129,466, 2026 WL 547963, at *7 (Kan. Ct. App. Feb. 27, 2026).
33 CoreCivic, Inc. v. Governor of New Jersey, 145 F.4th 315, 329 (3d Cir. 2025); Geo Grp., Inc. v. Newsom, 50 F.4th 745, 760–61 (9th Cir. 2022).
34 CoreCivic, 145 F.4th at 329; Geo Grp., 50 F.4th at 760–61.
35 Geo Grp., 50 F.4th at 762 (quoting 8 U.S.C. § 1231).
36 Id. at 763 (Murguia, C.J., dissenting); CoreCivic, 145 F.4th at 332–34 (Ambro, J., dissenting).
37 Geo Grp., 50 F.4th at 766 (Murguia, C.J., dissenting) ("To the extent that we are concerned with state laws that burden the federal government by regulating private parties, those concerns are more appropriately addressed by preemption."); CoreCivic, 145 F.4th at 332 (Ambro, J., dissenting) ("[U]sing immunity to invalidate a law like AB 5207, which neither applies to nor discriminates against the United States, is like using a hammer to pound in a screw. … In my view, preemption, not immunity, is the proper tool for addressing neutral state laws that substantially but indirectly burden the Federal Government.").
38 McHenry Cnty. v. Kwame Raoul, 44 F.4th 581, 593 (7th Cir. 2022)
39 Id.
40 8 U.S.C. §§ 1225-1226, 1231.
41 Id. at § 1231 (requiring DHS to "consider the availability for purchase or lease of any existing prison, jail, detention center, or other comparable facility suitable for such use" before constructing a new detention facility and, in the absence of a suitable existing facility, allowing it to "expend ... amounts necessary to acquire land and to acquire, build, remodel, repair, and operate" such facilities").
42 Hancock v. Train, 426 U.S. 167, 178–79 (1976) (quoting Johnson v. Maryland, 254 U.S. 51, 57 (1920)), superseded by statute, Clean Air Act Amendments of 1977, Pub. L. No. 95-95, § 116, 91 Stat. 685, 711 (codified as amended at 42 U.S.C. § 7418); City of Birmingham v. Thompson, 200 F.2d 505 (5th Cir. 1952) (concluding city could not require contractor building federal veteran’s hospital to pay permitting fees); U.S. Postal Serv. v. City of Hollywood, Fla., 974 F. Supp. 1459, 1463 (S.D. Fla. 1997) (collecting cases and concluding that city permitting process cannot apply to post office construction where it "does not merely affect the construction process remotely by a general rule of conduct, but rather … extends to a requirement that construction be stopped until the City’s requirements are satisfied"); U.S. Postal Serv. v. Town of Greenwich, Conn., 901 F. Supp. 500, 505 (D. Conn. 1995) ("Courts have consistently held that the local municipalities cannot regulate the United States Postal Office regarding its opening of post offices.") (collecting cases); Middletown Twp. v. N/E Reg’l Office, U.S. Postal Serv., 601 F. Supp. 125, 128 (D.N.J. 1985) ("[T]he relevant authorities establish that the Postal Service is not bound to observe the land use regulations of Middletown Township."); United States v. Town of Windsor, Conn., 496 F. Supp. 581, 589 (D. Conn. 1980) ("to the extent that … the legal incidence of [town] building regulations or the building permit fee would fall upon the Federal Government as title owner of [a construction project], said requirements are unenforceable"); City of Des Moines v. Sec’y of Hous. & Urban Dev., 4:00CV90625, 2000 WL 33666936 (S.D. Iowa Sept. 22, 2000) (unpublished) ("The City’s attempt to apply its housing code to property owned by HUD is an attempt to directly regulate the federal government. The City’s claim against HUD is therefore barred by the doctrine of intergovernmental immunity.").
43 Hancock, 426 U.S. at 180.
44 Id. at 179.
45 See id.; James Stewart & Co. v. Sadrakula, 309 U.S. 94, 103–04 (1940).
46 See infra notes 54–58, 117–22.
47 40 U.S.C. §§ 3312(b), (c).
48 Id. at § 3312(d).
49 Id. at § 3312(e).
50 Cf. Hancock, 426 U.S. at 172 (referring to a prior statute requiring federal installations to "cooperate with" federal and state air pollution control authorities as a "voluntary scheme").
51 40 U.S.C. § 3312(a)(2).
52 Id. at §§ 901, 903.
53 See Delaware River Joint Toll Bridge Comm’n v. Oleksiak, CV 19-2978, 2019 WL 3545851 (E.D. Pa. Aug. 2, 2019) (unpublished) ("States cannot impose safety and inspection regulations on federal buildings or property. Congress instead provides federal agencies must comply with federal building codes."); GEO Grp., Inc. v. City of Tacoma, 3:18-CV-05233-RBL, 2019 WL 5963112, *7 (W.D. Wash. Nov. 13, 2019) (unpublished) (ruling 40 U.S.C. § 3312 does not apply to private detention facilities but also seemingly expressing skepticism about the idea that the use of "consider" exempts federal buildings from complying with local zoning laws).
54 See 33 U.S.C. § 1323 (Clean Water Act) ("[T]he Federal Government … shall be subject to, and comply with, all Federal, State, interstate, and local requirements, administrative authority, and process and sanctions respecting the control and abatement of water pollution in the same manner, and to the same extent as any nongovernmental entity including the payment of reasonable service charges."); 42 U.S.C. § 7418 (Clean Air Act) ("Each department, agency, and instrumentality of the executive, legislative, and judicial branches of the Federal Government (1) having jurisdiction over any property or facility, or (2) engaged in any activity resulting, or which may result, in the discharge of air pollutants, and each officer, agent, or employee thereof, shall be subject to, and comply with, all Federal, State, interstate, and local requirements, administrative authority, and process and sanctions respecting the control and abatement of air pollution in the same manner, and to the same extent as any nongovernmental entity."); 42 U.S.C. § 6961 (Resource Conservation and Recovery Act) ("Each department, agency, and instrumentality of the executive, legislative, and judicial branches of the Federal Government (1) having jurisdiction over any solid waste management facility or disposal site, or (2) engaged in any activity resulting, or which may result, in the disposal or management of solid waste or hazardous waste shall be subject to, and comply with, all Federal, State, interstate, and local requirements, both substantive and procedural (including any requirement for permits or reporting or any provisions for injunctive relief and such sanctions as may be imposed by a court to enforce such relief), respecting control and abatement of solid waste or hazardous waste disposal and management in the same manner, and to the same extent, as any person is subject to such requirements, including the payment of reasonable service charges."); 42 U.S.C. § 300j-6 (Safe Drinking Water Act) ("Each department, agency, and instrumentality of the executive, legislative, and judicial branches of the Federal Government--(1) owning or operating any facility in a wellhead protection area; (2) engaged in any activity at such facility resulting, or which may result, in the contamination of water supplies in any such area; (3) owning or operating any public water system; or (4) engaged in any activity resulting, or which may result in, underground injection which endangers drinking water (within the meaning of section 300h(d)(2) of this title), shall be subject to, and comply with, all Federal, State, interstate, and local requirements, both substantive and procedural (including any requirement for permits or reporting or any provisions for injunctive relief and such sanctions as may be imposed by a court to enforce such relief), respecting the protection of such wellhead areas, respecting such public water systems, and respecting any underground injection in the same manner and to the same extent as any person is subject to such requirements, including the payment of reasonable service charges.").
55 42 U.S.C. §§ 300j-6, 6961, 7418; 33 U.S.C. § 1323.
56 Rachel Frazin, Trump Exempts More than 100 Polluters from Environmental Standards, The Hill (July 18, 2025, at 12:56 ET), https://thehill.com/policy/energy-environment/5408714-trump-epa-polluters-environmental-standards-clean-air-act/.
57 Ian Karbal, ICE Asks For More Time to Address Environmental Concerns Around Proposed Pa. Detention Centers, Penn. Capital-Star (Mar. 20, 2026, at 16:08), https://penncapital-star.com/immigration/ice-asks-for-more-time-to-address-environmental-concerns-around-proposed-pa-detention-centers/.
58 See infra section I.C.
59 Hancock v. Train, 426 U.S. 167, 179 (1976); see also North Dakota v. United States, 495 U.S. 423, 436 (1990) (plurality) (concluding that North Dakota laws governing distribution of liquor by out-of-state shippers that significantly limited alcohol procurement options for military bases did not violate the intergovernmental immunity doctrine).
60 United States v. Washington, 596 U.S. 832, 839 (2022).
61 James Stewart & Co. v. Sadrakula, 309 U.S. 94 (1940).
62 Id. at 103–04.
63 See Kate Sablosky Elengold & Jonathan D. Glater, The Sovereign Shield, 73 Stan. L. Rev. 969 (2021) (discussing how private contractors are regularly seeking to extend intergovernmental immunity and other sovereignty-related doctrines to evade state and local regulations); United States v. Town of Windsor, Conn., 496 F. Supp. 581, 584 (D. Conn. 1980) (allowing town to impose state building code requirements for construction of a coal gasification project insofar as they applied to the private company that owned the land and was responsible for design, construction, and operation of facilities, while noting that the requirements could not run directly against the federal government, which was funding two-thirds of the project and leasing the facility). But see Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 181 (1988) ("[A] federally owned facility performing a federal function is shielded from direct state regulation, even though the federal function is carried out by a private contractor, unless Congress clearly authorizes such regulation.").
64 See Sadrakula, 309 U.S. at 100 (noting that where the federal government acquires jurisdiction from a state for a federal enclave, "only the law in effect at the time of the transfer of jurisdiction continues in force" and "future statutes of the state are not a part of the body of laws in the ceded area"). Yet "[n]ot every property owned by the federal government is a federal enclave." Walter H. Boone, et al., Federal Enclaves: Critical Islands of Federal Jurisdiction Protecting the National Interest, 102 Wash. U. L. Rev. Online 40, 47 (2025). "In fact, both the number and size of federal enclaves are quite small compared to the total property holdings of the federal government." Id.
65 Gloria Rebecca Gomez, Mayes Considers Public Nuisance Lawsuit to Stop 1,500-Bed ICE Detention Center in Surprise, AZ Mirror (Feb 10., 2026, at 15:03 CT), https://azmirror.com/briefs/mayes-considers-public-nuisance-lawsuit-to-stop-1500-bed-ice-detention-center-in-surprise/.
66 Restatement (Second) of Torts § 822 (A.L.I. 1976).
67 Letter from Kris Mayes, Att’y Gen., Off. of the Att’y Gen. State of Ariz., to Kristi Noem, Sec’y, U.S. Dep’t of Homeland Sec. (Feb. 9, 2026); see also Letter from Josh Shapiro, Gov. of Pennsylvania, to Kristi Noem, Sec’y, U.S. Dep’t of Homeland Sec. (Feb. 12, 2026) (raising a range of concerns with planned detention centers, including policy disagreements as well as strain on water an wastewater infrastructure, ambulance services, and more); Com. of Puerto Rico v. Muskie, 507 F. Supp. 1035 (D.P.R. 1981) (concluding that the wastewater from a large refugee processing center would "inevitably result in the sort of public nuisance for which a cause of action has been held to exist under federal common law"), vacated sub nom. Marquez-Colon v. Reagan, 668 F.2d 611 (1st Cir. 1981); Maureen E. Brady, Property and Projection, 133 Harv. L. Rev. 1143, 1150–56 (2020) (discussing the use of nuisance to address lighting-related claims regarding property); Restatement (Second) of Torts §§ 821B, 821D (collecting private and public nuisance cases).
68 St. Joseph Lead Co. v. Prather, 238 F.2d 301, 305 (8th Cir. 1956).
69 Id. at 305–06.
70 See, e.g., Ariz. Rev. Stat. § 13-2917 ("It is a public nuisance, and is no less a nuisance because the extent of the annoyance or damage inflicted is unequal, for anything: 1. To be injurious to health, indecent, offensive to the senses or an obstruction to the free use of property that interferes with the comfortable enjoyment of life or property by an entire community or neighborhood or by a considerable number of persons.").
71 Restatement (Second) of Torts §§ 821D, 821E; see also Quechan Indian Tribe v. United States, 535 F. Supp. 2d 1072 (S.D. Cal. 2008) (allowing both private and public nuisance claims on behalf of tribe).
72 Restatement (Second) of Torts § 821B.
73 See Leslie Kendrick, The Perils and Promise of Public Nuisance, 132 L.J. 702, 736, 742, 767, 790 (2023) (discussing both critiques of and support for public nuisance doctrine).
74 See, e.g., Lamb v. Martin Marietta Energy Sys., Inc., 835 F. Supp. 959, 965 (W.D. Ky. 1993) (concluding that "state tort law would improperly regulate a federal facility … where state law is based upon a standard of care that is inconsistent with the federal laws, regulations, or other orders or directions governing the operation of the facility," whereas "state law would not impermissibly regulate or control a federal facility if the state law standard of care is the same as, or consistent with, federal law"); United States v. City of Arcata, 629 F.3d 986, 991 (9th Cir. 2010) (concluding that law making it a public nuisance for the military recruit people under age 18 directly regulate the federal government because it expressly "constrain[ed] the conduct of federal agents and employees").
75 Jason Laronde, et al. v. United States of Am., et al., EDCV 24-872 JGB (JPRX), 2025 WL 4114170, *1–2 (C.D. Cal. Nov. 7, 2025).
76 Id. at *5–6.
77 City of Des Moines v. Sec’y of Hous. & Urban Dev., 4:00CV90625, 2000 WL 33666936, *4 (S.D. Iowa Sept. 22, 2000) (unpublished) ("by virtue of the doctrine of intergovernmental immunity, HUD is not subject to the City’s local housing codes"); United States v. City of St. Paul, No. 0:00-cv-00258 (D. Minn. May 1, 2000) (concluding that city’s codes cannot apply to HUD both on preemption and intergovernmental immunity grounds), aff’d, 258 F.3d 750 (8th Cir. 2001) (writing that "HUD cannot be subjected to a vast multitude of municipal ordinances throughout the United States" but failing to specify whether it was ruling on preemption or intergovernmental immunity grounds).
78 See 28 U.S.C. § 2671; id. § 2679(b)(1) (making the FTCA the "exclusive" remedial option "for injury or loss of property, or personal injury or death arising or resulting from the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment" and providing that "[a]ny other civil action or proceeding for money damages" against the government employee "is precluded"). See also Harrison Stark, Explainer: State-Created Damages Remedies Against Federal Officials, State Democracy Rsch. Initiative (Feb. 9, 2026), https://statedemocracy.law.wisc.edu/featured/2025/explainer-state-created-damages-remedies-against-federal-officials/.
79 William Baude, et al., Hart and Wechsler’s The Federal Courts and the Federal System 1345 (8th ed. 2025).
80 Id.; Adam Liptak & Devlin Barrett, Unlike Trump, Most Who Seek Money for Official Misconduct Face Long Odds, N.Y. Times (Oct. 23, 2025), https://www.nytimes.com/2025/10/23/us/politics/trump-misconduct-claims.html; Stephen L. Nelson, The King’s Wrongs and the Federal District Courts: Understanding the Discretionary Function Exception to the Federal Tort Claims Act, 51 S. Tex. L. Rev. 259 (2009) (analyzing application of the discretionary function exception from 1946 and 2007); Gregory Sisk, Recovering the Tort Remedy for Federal Official Wrongdoing, 96 Notre Dame L. Rev. 1789, 1806–31 (2021) (calling for revisions to the FTCA, including narrowing the discretionary function exception).
81 North Dakota v. United States, 785 F. Supp. 3d 473, 484–85 (D.N.D. 2025).
82 Id. at 549–53.
83 See, e.g., U.S. Info. Agency v. Krc, 989 F.2d 1211, 1216 (D.C. Cir. 1993) ("Here, … the FTCA specifically bars money damages as a remedy …, which by parity of reasoning implies that injunctive relief is available."); Michigan v. U.S. Army Corps of Engineers, 667 F.3d 765, 775 (7th Cir. 2011) (rejecting argument "the FTCA implicitly prohibits injunctive relief in tort suits against the United States" and writing that defendants’ "effort to transform silence into implicit prohibition would seriously undermine Congress’s effort in the APA to authorize specific relief against the United States"); Texas v. U.S. Dep’t of Homeland Sec., 123 F.4th 186, 203–04 (5th Cir. 2024) ("The FTCA gives no indication, implicit or otherwise, that it meant to preclude prospective relief in general, much less the nonmonetary relief expressly authorized by § 702.").
84 F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994).
85 5 U.S.C. § 702. Other statutes also provide waiver in specific types of cases, like those that "authorize a petition in a federal court of appeals to set aside an administrative order." Baude et al., supra note 79, at 1341.
86 5 U.S.C. § 702.
87 Braden Currey, Rationalizing the Administrative Record for Equitable Constitutional Claims, 133 Yale L.J. 2017, 2021 (2024); Perry Cap. LLC v. Mnuchin, 864 F.3d 591, 620 (D.C. Cir. 2017) ("We have ‘repeatedly’ and ‘expressly’ held in the broadest terms that ‘the APA’s waiver of sovereign immunity applies to any suit whether under the APA or not.’" (quoting Trudeau v. FTC, 456 F.3d 178, 186 (D.C. Cir. 2006))); Commonwealth of Puerto Rico v. United States, 490 F.3d 50, 57–58 (1st Cir. 2007) ("[The] waiver is for all equitable actions for specific relief against a Federal agency or officer acting in an official capacity, and thus applies to any suit whether under the APA or not." (cleaned up)); Warin v. Dir., Dep’t of Treasury, 672 F.2d 590, 591 (6th Cir. 1982) ("We find that the amended 5 U.S.C. s 702 operates as a waiver of the sovereign immunity defense available under Section 1331.").
88 Texas v. U.S. Dep’t of Homeland Sec., 123 F.4th 186, 200 (5th Cir. 2024) ("We cannot rewrite § 702 to say ‘a federal action’ when Congress only wrote ‘an action.’").
89 See Perry Cap. LLC, 864 F.3d at 620 ("Treasury’s argument that § 702 does not waive its immunity from suit for state law claims is foreclosed by our precedent."); Treasurer of New Jersey v. U.S. Dep’t of Treasury, 684 F.3d 382, 400 n.19 (3d Cir. 2012) ("[W]e see no support for the distinction that the Government makes between federal and state law in either the text or the history of section 702.").
90 Compare Texas, 123 F.4th at 202–03 (discussing other circuits’ approach to waiver) with id. at 228 (Ramirez, J., dissenting) (disputing the majority’s characterization of several cases) and Texas v. U.S. Dep’t of Homeland Sec., DR-23-CV-00055-AM, 2023 WL 8285223, at *8 (W.D. Tex. Nov. 29, 2023) (concluding that the APA waiver did not clearly apply to actions arising under state common law), rev’d, 123 F.4th 186 (5th Cir. 2024).
91 See 5 U.S.C. § 702 (applying only to "[a]n action in a court of the United States"); Texas, 123 F.4th at 200 ("By its terms, § 702 waives immunity for any ‘action’ seeking nonmonetary relief in federal court."); United States v. Mitchell, 445 U.S. 535, 538 (1980) ("A waiver of sovereign immunity ‘cannot be implied but must be unequivocally expressed.’" (quoting United States v. King, 395 U.S. 1, 4 (1969))).
92 Complaint at 16–20, Village of Broadview v. U.S. Dep’t of Homeland Sec., No. 1:25-cv-12164 (N.D. Ill. Oct. 3, 2025).
93 Village of Broadview v. U.S. Dep’t of Homeland Sec., No. 1:25-cv-12164, 2025 WL 2896819, at *4, *8 (N.D. Ill. Oct. 9, 2025).
94 Paul J. Wahlbeck, The Development of a Legal Rule: The Federal Common Law of Public Nuisance, 32 Law & Soc’y Rev. 613 (1998); Mark P. Nevitt & Robert V. Percival, Could Official Climate Denial Revive the Common
Law as a Regulatory Backstop, 96 Wash. U. L. Rev. 441 (2018).
95 Georgia v. Tennessee Copper (1907).
96 Illinois v. City of Milwaukee (1972).
97 Com. of Puerto Rico v. Muskie, 507 F. Supp. 1035, 1061 (D.P.R. 1981), vacated sub nom. Marquez-Colon v. Reagan, 668 F.2d 611 (1st Cir. 1981).
98 Id. at 1062.
99 Id. at 1064.
100 Marquez-Colon v. Reagan, 668 F.2d 611 (1st Cir. 1981).
101 See Am. Elec. Power Co., Inc. v. Connecticut, 564 U.S. 410, 424 (2011) ("[T]he Clean Air Act and the EPA actions it authorizes displace any federal common-law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired powerplants."); City of Milwaukee v. Illinois & Michigan, 451 U.S. 304, 317 (1981) (holding that the Federal Water Pollution Acts of 1972 displaced federal common on water pollution, at least regarding the claims of Illinois and Michigan against Milwaukee for discharge of sewage into Lake Michigan).
102 Id. at 421.
103 Michigan v. U.S. Army Corps of Engineers, 667 F.3d 765, 771 (7th Cir. 2011).
104 Id.
105 Michigan v. U.S. Army Corps of Engineers, 758 F.3d 892, 901 (7th Cir. 2014).
106 See Nevitt & Percival, supra note 94, at 475–92 (arguing for a revival of federal nuisance common law in the wake of regulatory rollback at the federal level).
107 See supra text accompanying notes 86–90; Texas v. United States Dep’t of Homeland Sec., 123 F.4th 186, 228 (5th Cir. 2024) (Ramirez, J., dissenting) ("Texas’s general argument that other circuit courts have held that § 702 applies to state law is likewise unfounded. Several of our sister courts have instead considered claims arising from a federal statute or federal common law or issues totally removed from sovereign immunity." (emphasis added)).
108 See City of New York v. Chevron Corp., 993 F.3d 81, 90 (2d Cir. 2021) (concluding federal common law preempted the state’s tort-law claims); Boyle v. United Techs. Corp., 487 U.S. 500, 504 (1988) ("[W]e have held that a few areas, involving uniquely federal interests are so committed by the Constitution and laws of the United States to federal control that state law is pre-empted and replaced, where necessary, by … federal common law." (cleaned up)); cf. Karen C. Sokol, Seeking (Some) Climate Justice in State Tort Law, 95 Wash. L. Rev. 1383, 1424–38 (2020) (arguing federal common law of nuisance should not preempt state nuisance law); Jonathan H. Adler, Displacement and Preemption of Climate Nuisance Claims, 17 J.L. Econ. & Pol’y 217 (2022) (discussing the interaction between federal statutes, federal common law, and state law on climate).
109 Grinspan, supra note 10.
110 Soc. Circle Ga., supra note 9; Demographics, Soc. Circle Ga., https://www.socialcirclega.gov/about-us/demographics (last visited Mar. 29, 2026).
111 Grinspan, supra note 10.
112 Knox, supra note 10.
113 See, e.g., Novato Fire Prot. Dist. v. United States, 181 F.3d 1135, 1139 (9th Cir. 1999) (concluding that detaching a military base from a local fire district’s service area was intended "to circumvent inter-governmental tax immunity by removing the District’s pre-existing duty to provide core government services" and "would effectively give that municipality a method of assessing a property tax from the federal government in exchange for the provision of any and all basic services").
114 See e.g., Felipe De La Hoz, How Extreme Can Democratic Governors Get to Stop Trump?, The New Republic (July 10, 2025), https://newrepublic.com/article/196302/democratic-governors-use-force-trump (discussing the possibility of "ordering utility providers to cease providing services to ‘federal agencies/departments that are in violation of a federal court order’").
115 See supra section I.A.i (discussing the Seventh Circuit case that upheld Illinois’s ban on state and local entities providing detention space to ICE); infra section II.A (discussing state and local power over their own land).
116 See Ariana Figueroa, Republicans Applaud Immigrant Detention — Until It’s in Their Back Yards, N.H. Bulletin (Apr. 6, 2025, at 4:55), https://newhampshirebulletin.com/2026/04/06/repub/republicans-applaud-immigrant-detention-until-its-in-their-back-yards/?emci=8e7ae6a5-872f-f111-9a48-000d3a14b640&emdi=be06b4c2-a731-f111-9a48-000d3a14b640&ceid=386656 ("communities and lawmakers have been able to end the bids of … 13 proposed detention centers").
117 See, e.g., City of Rochester v. U.S. Postal Serv., 541 F.2d 967, 979 (2d Cir. 1976) (enjoining post office construction where federal government failed to comply with various procedural requirements in federal statutes).
118 Complaint, Maryland v. Noem, No. 1:26-cv-733, 2026 WL 691507 (D. Md. Mar. 11, 2026); Complaint, New Jersey v. U.S. Dep’t Immigr. & Customs Enf’t, No. 2:26-cv-02884 (D. N.J. Mar. 20, 2026).
119 Maryland v. Mullin, No. 1:26-cv-00733, at *2 (D. Md. Apr. 17, 2026).
120 Id. at *1.
121 31 U.S.C. § 6506(c).
122 See 40 U.S.C. §§ 901, 903; Olmsted Citizens for a Better Cmty. v. United States, 606 F. Supp. 964 (D. Minn. 1985) (unsuccessfully alleging noncompliance with federal urban land use laws), aff’d, 793 F.2d 201 (8th Cir. 1986).
123 Village of Broadview v. U.S. Dep’t of Homeland Sec., No. 1:25-cv-12164, 2025 WL 2896819, at *4, *8 (N.D. Ill. Oct. 9, 2025).
124 See, e.g., Off. of the Mayor of N.Y.C. Exec. Order No. 13 (Feb. 6, 2026), https://www.nyc.gov/content/dam/nycgov/mayors-office/downloads/pdf/executive-orders/2026/eo-13.pdf; Off. of the Mayor of Denv. Exec. Order No. 152 (Feb. 26, 2026), https://denvergov.org/files/assets/public/v/2/executive-orders/documents/xo-152.pdf; George Shillcock, Columbus City Council Passes Legislation Restricting ICE Activity, Urging Agents to Show ID, WOSU Pub. Media (Feb. 23, 2026, at 15:21 ET), https://www.wosu.org/politics-government/2026-02-23/columbus-city-council-to-consider-legislation-restricting-ice-activity-urging-agents-to-show-id; Off. of the Mayor of Chi., Exec. Order No. 2025-8, https://news.wttw.com/sites/default/files/article/file-attachments/Executive%20Order%20No.%202025-8.pdf; Richard Requena, Evanston Resolution Establishes ‘ICE-Free Zones’ and Bans Federal Immigration Officers From City-Owned Property, Chi. Trib. (Oct. 20, 2025, at 11:05 CT), https://www.chicagotribune.com/2025/10/20/evanston-city-council-adopts-ice-free-zones/; Bob Skolnik, Oak Park Officials Take Steps to ‘Protect Our Immigrant Neighbors’ Amid Federal Enforcement Blitz, Chi. Trib. (Nov. 6, 2025, at 16:26 CT), https://www.chicagotribune.com/2025/11/06/oak-park-protect-neighbors-ice/; Vanessa Swales, Milwaukee Committee Moves to Ban ICE Activity on City-Owned Property, Milwaukee J. Sentinel (Mar. 29, 2026, at 16:24 CT), https://www.jsonline.com/story/news/local/milwaukee/2026/03/09/milwaukee-committee-moves-to-ban-ice-activity-on-city-owned-property/89068995007/; Bay City News, SF Supervisors Pass Legislation Establishing ICE-Free Zones on City Property, NBC Bay Area (Feb. 25, 2026, at 8:09 CT), https://www.nbcbayarea.com/news/local/san-francisco-legislation-ice-free-zones/4042779/; Off. of the Mayor of Seattle Exec. Order No. 2026-03 (Jan. 29, 2026), https://wilson.seattle.gov/wp-content/uploads/sites/43/2026/02/Executive-Order-2026-03-Prohibition-on-Staging-on-City-Property.pdf; Dani Jankowski, Santa Clara County Establishes Ice-Free Zones, The Santa Clara (Oct. 31, 2025), https://www.thesantaclara.org/blog/santa-clara-county-establishes-ice-free-zones; Alex Baker, San Jose Bans ICE from Using City Properties, KRON 4 News (Jan. 16, 2026, at 10:33 PT), https://www.kron4.com/news/bay-area-ice-raids/san-jose-bans-ice-from-using-city-properties/; Off. of the Mayor of Minneapolis Exec. Order No. 2025-02 (Dec. 3, 2025), https://www.minneapolismn.gov/government/mayor/executive-orders/executive-order-2025-02/; Matt Wagenius, Mayor Kaohly Her Signs Ordinance to Respond to Federal ICE Activity in Saint Paul, StPaul.gov (Feb. 5, 2026), https://www.stpaul.gov/news/mayor-kaohly-her-signs-ordinance-respond-federal-ice-activity-saint-paul; Washtenaw Cnty. Bd. of Comm’rs, A Resolution Opposing the Use of County Buildings and Face Coverings by Immigration and Customs Enforcement (ICE) Officers, Customs and Border Protection Officers, or Their Contractors During Civil Immigration Enforcement Activities in Washtenaw County (Jan. 21, 2026), https://washtenawcomi.portal.civicclerk.com/event/3945/files/attachment/5208; Sam Feineh, "ICE-Free Zones" Explained: How Cities and Counties are Working Together to Resist ICE, Vera Inst. of Just. (Mar. 9, 2026), https://www.vera.org/news-spotlights/ice-free-zones-explained; Tracey Tully & Luis Ferré-Sadurní, Trump’s Justice Department Sues New Jersey Governor Over ICE Enforcement, N.Y. Times (Feb. 24, 2026), https://www.nytimes.com/2026/02/24/nyregion/doj-sues-new-jersey-ice-sherrill.html (discussing New Jersey executive order barring officers from conducting civil arrests in non-public areas of state-owned property and from using state property to stage operations).
125 Complaint at 42–45, Minnesota v. Noem, No. 0:26-cv-00190-KMM-DJF (D. Minn. Jan. 12, 2026).
126 Natalie Fertig, A Leased ICE Detention Center Wears Out Its Welcome in Portland, Oregon, Politico (Dec. 4, 2025, at 19:26 ET), https://www.politico.com/news/2025/12/04/a-leased-ice-detention-center-wears-out-its-welcome-in-portland-oregon-00677961; Jamie Parfitt, City of Portland Issues Rule to Fine Detention Facilities Which Create a ‘Public Nuisance’, KGW (Feb. 27, 2026, at 16:19 PT), https://www.kgw.com/article/news/local/portland-city-detention-facility-center-fine-fee-rule-ordinance-issued-ice/283-abd3715e-e1aa-46fc-8991-693437c9654c.
127 Exploring State Checks Against Federal Overreach, State Democracy Rsch. Initiative, https://statedemocracy.law.wisc.edu/our-work/exploring-state-checks-against-federal-overreach (last visited Apr. 15, 2026).
128 Off. of the Mayor of Chi. Exec. Order No. 2025-8, https://chicityclerk.s3.us-west-2.amazonaws.com/s3fs-public-1/reports/EXECUTIVE%20ORDER%202025-8.pdf?VersionId=4IyaMv4OpR2Vltis6BTY0JVlGOkyqqrW.
129 S.F., Cal., Ordinance 27-26 (Feb. 27, 2026).
130 See, e.g., Texas v. United States Dep’t of Homeland Sec., 123 F.4th 186 (5th Cir. 2024) (where Texas is seeking to enforce trespass laws regarding its own property, it is "acting as a proprietor and not a regulator" and therefore does not fun afoul of intergovernmental immunity).
131 United States v. New York, 1:25-CV-744 (MAD/PJE), 2025 WL 3205011, *17 (N.D.N.Y. Nov. 17, 2025).
132 See, e.g., Madison Municipal Ordinance 8.21 ("Public Parks to be Closed During Certain Hours"); Cal. Pen. Code § 626.8 (limiting who can "come[] into any school building or upon any school ground, or street, sidewalk, or public way adjacent thereto"); Fla. Stat. § 810.0975 (establishing "school safety zones").
133 See McHenry Cnty. v. Kwame Raoul, 44 F.4th 581, 592 (7th Cir. 2022) (noting that states can withhold cooperation with federal immigration enforcement); United States v. California, 921 F.3d 865, 891 (9th Cir. 2019) ("California has the right, pursuant to the anticommandeering rule, to refrain from assisting with federal efforts.").
134 Complaint at 42–45, Minnesota v. Noem, No. 0:26-cv-00190-KMM-DJF (D. Minn. Jan. 12, 2026).
135 See Johnson v. State of Maryland, 254 U.S. 51, 56–57 (1920) (concluding state could not require a postal worker to obtain a state driver’s license to deliver the mail, suggesting the intergovernmental immunity doctrine would apply to state efforts to control activities on public roadways); United States v. King Cnty., Washington, 122 F.4th 740, 757–58 (9th Cir. 2024) (concluding that county executive order banning contractors at a state airport from servicing ICE flights violated intergovernmental immunity by specifically discriminating against federal actors).
136 See, e.g., Jason Laronde, et al. v. United States of Am., et al., EDCV 24-872 JGB (JPRX), 2025 WL 4114170, *5–6 (C.D. Cal. Nov. 7, 2025) (municipal ordinance barring obstruction of right-of-way did not violate intergovernmental immunity because it applied neutrally and only governed the public sidewalk rather than the postal office).
137 Bryna Godar, Explainer: Can States Prosecute Federal Officials?, State Democracy Rsch. Initiative (July 17, 2025), https://statedemocracy.law.wisc.edu/featured/2025/explainer-can-states-prosecute-federal-officials/.
138 See, e.g., Wyoming v. Livingston, 443 F.3d 1211, 1230 (10th Cir. 2006) (dismissing state trespass claim against wildlife officers because they had an "objectively reasonable and well-founded" belief that they were on public land when conducting wolf collaring).
139 Compare Livingston, 443 F.3d at 1213 (10th Cir. 2006) ("Supremacy Clause immunity governs the extent to which states may impose civil or criminal liability on federal officials for alleged violations of state law committed in the course of their federal duties." (emphasis added)), with Martin v. United States, 605 U.S. 395, 413 n.2 (2025) ("To date at least, this Court has also generally understood [Supremacy Clause immunity] as providing federal officers a shield against only state criminal prosecution, not (as here) state tort liability."); see also United States v. City of Arcata, C 08-5725 SBA, 2009 WL 1774269, at *1 (N.D. Cal. June 18, 2009) (applying intergovernmental immunity doctrine to ordinance that would civilly fine military recruiters who recruit anyone under age 18), aff’d, 629 F.3d 986 (9th Cir. 2010); City of Country Club Hills v. U.S. Dep’t of Hous. & Urban Dev., 99 C 7139, 2001 WL 1117276, at *7 (N.D. Ill. Sept. 17, 2001) (concluding that a city’s efforts to apply its building code to a HUD property violated intergovernmental immunity and enjoining it "from seeking to cite, fine, or penalize HUD or its employees, agents, or contractors, when they are carrying out their duties derived from the National Housing Act and all regulations promulgated thereunder" (emphasis added)).
140 Johnson v. State of Maryland, 254 U.S. 51, 56–57 (1920).
141 Id.
142 8 U.S.C. § 1357(a)(3); Texas v. U.S. Dep’t of Homeland Sec., 123 F.4th 186, 207 (5th Cir. 2024) ("[A]s all concede, Border Patrol agents may access private property in order to prevent illegal entries."); see also infra text accompanying notes 163–67 (discussing this statute in more depth).
143 Restatement (Second) of Torts § 821B.
144 See, e.g., Florida v. Jardines, 569 U.S. 1, 8 (2013) (noting that "a police officer not armed with a warrant may approach a home and knock, precisely because that is ‘no more than any private citizen might do’" (quoting Kentucky v. King, 563 U.S. 452, 469 (2011))); Gill v. United States, 588 F. Supp. 3d 134, 138 (D. Mass. 2022) ("When law enforcement officers enter a plaintiff’s land pursuant to a valid warrant and do not exceed the warrant’s scope, they do not commit trespass."); Kennedy v. Decaire, 798 F. Supp. 3d 4, 24 (D. Mass. 2025) ("Because entry into Plaintiff’s residence was proper, authorized by an arrest warrant, and supported by reasonable belief that [her son] lived there and would be present, Defendants cannot be liable for trespass."); Box v. State, 492 P.3d 685, 705 (Or. Ct. App.), opinion adhered to as modified on reconsideration, 492 P.3d 1292 (Or. Ct. App. 2021) ("[A]bsent some privilege or authority to enter the property of another, a police officer who does so is liable for trespass. … An officer may acquire the authority or privilege to enter another’s property from a warrant or if an exception to the warrant requirement applies, such as the exception for exigent circumstances."); United States v. Lundin, 817 F.3d 1151, 1159 (9th Cir. 2016) (describing the "knock and talk" exception whereby police may "approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave" (quoting Florida v. Jardines, 569 U.S. 1, 8 (2013))). Some law enforcement privileges to enter stem from common-law privileges in trespass doctrine that predate the Fourth Amendment, like the privilege to enter property to conduct a criminal arrest. See Restatement (First) of Torts § 204 (A.L.I. 1934). But in practice, the viability of trespass claims against federal actors will typically hinge on whether the actions are reasonable or not under the Fourth Amendment. This report therefore does not tease out the difference between the common-law privileges and Fourth Amendment doctrine. However, when assessing trespass liability for state or local law enforcement officials, these distinctions—as well as the bounds of state constitutional search and seizure provisions—may be relevant.
145 See Gill, 588 F. Supp. 3d at 138 (U.S. Deputy Marshals’ entry onto someone’s property pursuant to an invalid warrant constituted a trespass); State v. Boilard, 488 A.2d 1380, 1388 (Me. 1985) (officer’s forceful entry into a home without a warrant and refusal to leave "[c]learly … fall within the definition of criminal trespass under our law"); Brutsche v. City of Kent, 193 P.3d 110, 116 (Wash. 2008) (en banc) ("[I]f officers executing a search warrant unnecessarily damage the property while conducting their search, that is, if they damage the property to a greater extent than is consistent with a thorough investigation, they exceed the privilege to be on the land and liability in trespass can result."); Torre v. City of Renton, 164 F. Supp. 3d 1275, 1285 (W.D. Wash. 2016) (trespass claim could proceed based on invalid warrant and otherwise unreasonable search); Slaybaugh v. Rutherford Cnty., 114 F.4th 593, 601 (6th Cir. 2024) ("[S]tate courts routinely hold that where police act unlawfully, injured parties can recover for any resulting property damage in an action for trespass."), cert. denied, 145 S. Ct. 1959 (2025); Richardson v. Henderson, 26-622, p. 6 (La. App. 2 Cir. 3/3/95), 651 So. 2d 501, 504–05 ("A valid search warrant does not confer on the executing officer authority to make an unreasonable search … ."); Robinson v. City of Denver, 39 F. Supp. 2d 1257, 1265 (D. Colo. 1999) ("[L]aw enforcement officials who exceed the scope of their warrant are subject to civil liability as trespassers." (citing Walker v. City of Denver, 720 P.2d 619, 623 (Colo. App. 1986))).
146 Hannah James, DHS Warrantless Home Entry Memo’s Fourth Amendment Problem, Brennan Ctr. for Just. (Feb. 4, 2026), https://www.brennancenter.org/our-work/analysis-opinion/dhs-warrantless-home-entry-memos-fourth-amendment-problem.
147 Rebecca Santana, Immigration Officers Assert Sweeping Power to Enter Homes Without a Judge’s Warrant, Memo Says, AP News (Jan. 21, 2026, at 20:27 CT), https://apnews.com/article/ice-arrests-warrants-minneapolis-trump-00d0ab0338e82341fd91b160758aeb2d; cf. Orin Kerr, Can ICE Enter a Home to Make an Arrest with Only an Administrative Warrant?, Lawfare (Jan. 22, 2026, at 9:10 CT), https://www.lawfaremedia.org/article/can-ice-enter-a-home-to-make-an-arrest-with-only-an-administrative-warrant (concluding that "the DHS policy is likely wrong" though not "frivolous").
148 See, e.g., Kidd v. Mayorkas, 734 F. Supp. 3d 967 (C.D. Cal. 2024).
149 Complaint at 14, Village of Broadview v. U.S. Dep’t of Homeland Sec., No. 1:25-cv-12164 (N.D. Ill. Oct. 3, 2025).
150 See Complaint at 42, Minnesota v. Noem, No. 0:26-cv-00190-KMM-DJF (D. Minn. Jan. 12, 2026) (quoting Saint Paul Legislative Code § 170.07 (h)(1)(a)-(c)).
151 Restatement (Second) of Torts §§ 217, 223.
152 Texas v. United States Dep’t of Homeland Sec., 123 F.4th 186 (5th Cir. 2024).
153 Id. at 214.
154 See, e.g., Tobias v. Pletzke, 933 F. Supp. 2d 892, 919–20 (E.D. Mich. 2013) (finding trespass to chattels claim could proceed where police took a laptop as part of a search where the warrant may not have been executed in good faith); Levine v. City of Bothell, 904 F. Supp. 2d 1124, 1132–33 (W.D. Wash. 2012) (allowing trespass claim and conversion claim for seizure of property to proceed where warrant may have been invalid); Nicole Foy & McKenzie Funk, We Found More Than 40 Cases of Immigration Agents Using Banned Chokeholds and Other Moves That Can Cut Off Breathing, ProPublica (Jan. 13, 2026, at 5:00 CT), https://www.propublica.org/article/videos-ice-dhs-immigration-agents-using-chokeholds-citizens (discussing incident where a teenager used Find My to locate his phone after immigration agents had taken it, finding it at a vending machine for used electronics near an ICE detention facility); Devan Cole, Property Lost During Immigration Crackdown Tees Up Latest Showdown over Judges’ Contempt Threats Against Prosecutors, CNN (Mar. 4, 2026) https://www.cnn.com/2026/03/04/politics/property-lost-immigration-crackdown-minnesota-contempt (discussing hearing over what had happened to property of roughly two dozen people who had "lost cash, phones, clothing and critical documents such as passports, work permits and driver’s licenses" amid transfers in and out of immigration detention facilities).
155 Fed. R. Crim. Pro. 41(g).
156 See, e.g., Valenzuela v. United States, 770 F. Supp. 3d 1311 (D.N.M. 2025) (ordering return of social security card, driver’s license, keys, and money seized during ICE arrest and allowing plaintiff to bring alternate monetary claim for phone, which government had destroyed).
157 See, e.g., Amir v. City of Oak Park, 219325, 2001 WL 692399, *3 (Mich. Ct. App. Mar. 30, 2001) (allowing "trespass-nuisance" claim where police threw tear gas canisters "into plaintiff’s apartment, breaking the windows and permeating plaintiff’s property with fumes"); Kendrick, supra note 73, at 711–28 (discussing the breadth of possible public nuisance claims, many of which are not tied to specific property); Restatement (Second) of Torts § 821B (collecting public nuisance cases); see also Soap Corp. of Am. v. Reynolds, 178 F.2d 503 (5th Cir. 1949) (upholding injunction against soap factory in private nuisance suit based on allegations of "nauseating" odors); Restatement (Second) of Torts § 821B, comment a (collecting public nuisance cases). As in Amir, some nuisance claims overlap with trespass where there is some physical intrusion on the land, and the specifics of this doctrine vary state to state. See Restatement (Second) of Torts § 821D, comment e, at 102 ("There may … be some overlapping of the causes of action for trespass and private nuisance."); Bradley v. Am. Smelting & Ref. Co., 709 P.2d 782, 789 (Wash. 1985) ("We hold that theories of trespass and nuisance are not inconsistent, that the theories may apply concurrently, and that the injured party may proceed under both theories when the elements of both actions are present."); Martin v. Reynolds Metals Co., 342 P.2d 790, 794 (Or.1959) (concluding that aluminum manufacturing operation causing fluoride particulates to intrude on land rendering it unfit for livestock constituted a trespass).
158 Bob Chiarito, Neighbors of Broadview ICE Facility Say They’re Stuck in Clashes Between Protesters, Feds, Chi. Pub. Media (Sep. 30, 2025, at 14:17 CT), https://chicago.suntimes.com/business/2025/09/29/broadview-businesses-ice-immigration-protest-suburbs.
159 Natasha Korecki, How Immigration Enforcement Turned Sleepy Broadview Into a Chaotic, Militarized Town, NBC News (Oct. 13, 2025, at 15:46 CT), https://www.nbcnews.com/news/us-news/broadview-illinois-ice-protests-chicago-immigration-rcna236519.
160 Texas v. United States Dep’t of Homeland Sec., 123 F.4th 186, 205 (5th Cir. 2024).
161 Rosa Flores, et al., What We Know About the Drownings of 3 Mexican Migrants Near Eagle Pass, Texas, CNN (Jan. 16, 2024, at 14:52 ET), https://www.cnn.com/2024/01/15/us/what-we-know-about-the-drownings-of-3-migrants-in-eagle-pass-texas/index.html.
162 Dep’t of Homeland Sec. v. Texas, 144 S. Ct. 715 (2024).
163 Id. at 193.
164 Id. at 214.
165 8 U.S.C. § 1357(a)(3); Texas, 123 F.4th at 207 ("[A]s all concede, Border Patrol agents may access private property in order to prevent illegal entries.").
166 See Wayne R. LaFave, 1 Search & Seizure § 2.4(b) (6th ed.).
167 Texas, 123 F.4th at 208.
168 See, e.g., Lamb v. Martin Marietta Energy Sys., Inc., 835 F. Supp. 959, 965 (W.D. Ky. 1993) (concluding that "state tort law would improperly regulate a federal facility … where state law is based upon a standard of care that is inconsistent with the federal laws, regulations, or other orders or directions governing the operation of the facility," whereas "state law would not impermissibly regulate or control a federal facility if the state law standard of care is the same as, or consistent with, federal law").
169 See, e.g., Simons v. United States, 413 F.2d 531 (5th Cir. 1969) (concluding that FTCA "was intended to include recovery in damages for trespasses of the United States"); Gill v. United States, 588 F. Supp. 3d 134, 138 (D. Mass. 2022) (concluding that U.S. deputy marshals’ use of an invalid warrant to enter private property was not covered by the discretionary function exception and therefore that the federal government was liable for trespass); see also Limone v. United States, 579 F.3d 79, 101 (1st Cir. 2009) ("the discretionary function exception does not immunize the government from liability for actions proscribed by federal statute or regulation" nor for "conduct that transgresses the Constitution"). While this is the majority view among federal circuit courts—and was the universal view until recently—some courts have taken a divergent approach in recent years as to whether constitutional violations can fall under the discretionary function exception. Recovering the Lost Meaning of the Federal Tort Claims Act’s "Discretionary Function Exception", 138 Harv. L. Rev. 654, 655–56 (2024).
170 28 U.S.C. § 2679(b)(2).
171 Stark, supra note 78.
172 Adam Liptak, A Legal Tool for Holding ICE Agents to Account, Hiding in Plain Sight, N.Y. Times, (Feb. 2, 2026), https://www.nytimes.com/2026/02/02/us/ice-lawsuits-states.html?searchResultPosition=2.
173 Professors Carlos M. Vázquez and Stephen I. Vladeck have gone further and suggested that the Westfall carveout could also allow plaintiffs to bring traditional common-law claims, like trespass, where the plaintiff is alleging that the federal officer violated the Constitution. Carlos M. Vázquez & Stephen I. Vladeck, State Law, the Westfall Act, and the Nature of the Bivens Question, 161 U. Pa. L. Rev. 509, 572 (2013). Given uncertainty around the viability of this theory in court, however, state legislation specifically creating a cause of action for constitutional violations is the stronger pathway. Plaintiffs seeking damages for constitutional violations could also file suits against federal officials in federal court under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, but "recent precedent has largely closed the door" on such actions, making them an unlikely pathway for relief. Stark, supra note 78.
174 U.S. Const. amend. V.
175 Maureen E. Brady, The Damagings Clauses, 104 Va. L. Rev. 341, 348 (2018).
176 United States v. 50 Acres of Land, 469 U.S. 24, 31 (1984) ("When the United States condemns a local public facility, the loss to the public entity, to the persons served by it, and to the local taxpayers may be no less acute than the loss in a taking of private property. Therefore, it is most reasonable to construe the reference to ‘private property’ in the Takings Clause of the Fifth Amendment as encompassing the property of state and local governments when it is condemned by the United States."); see also Bd. of Cnty. Supervisors v. United States, 47 Fed. Cl. 714, 727 (Fed. Cl. 2000), aff’d, 276 F.3d 1359 (Fed. Cir. 2002) (ordering just compensation to a Virginia county for land the federal government took by eminent domain for a national park expansion); Town of Nahant v. United States, 136 F. 273, 284 (1st Cir. 1905), modified, 153 F. 520 (1st Cir. 1907) (concluding a municipality is entitled to just compensation when land it has acquired for a public purpose is taken by the federal government); United States v. 4.105 Acres of Land in Pleasanton, 68 F. Supp. 279, 291 (N.D. Cal. 1946) (concluding San Francisco could recover compensation for its subterranean water rights in a property condemned by the federal government); cf. Michael H. Schill, Intergovernmental Takings and Just Compensation: A Question of Federalism, 137 U. Pa. L. Rev. 829, 831–32 (1989) (arguing for a different compensation approach to federal takings of state and local public land that accounts for the important federalism concerns in play). In contrast, courts have repeatedly held that subsidiary public bodies in the state cannot bring takings claims against the state or other subsidiary public entities. See City of Trenton v. New Jersey, 262 U.S. 182, 188 (1923) ("The power of the state … over the rights and property of cities held and used for ‘governmental purposes’ cannot be questioned."); Bd. of Water Works Trustees of Des Moines v. SAC Cnty. Bd. of Supervisors, 890 N.W.2d 50, 70 (Iowa 2017) ("If the DMWW, a public entity, cannot assert a takings claim against the state, nor can it assert such a claim against another political subdivision of the state—a drainage district created by state statute.").
177 Brady, supra note 175, at 348.
178 Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1015 (1992).
179 Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 438 (1982).
180 Lucas, 505 U.S. at 1015.
181 Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 125–26 (1978) (looking at "the character of the governmental action," the "economic impact of the regulation on the claimant," and "the extent to which the regulation has interfered with distinct investment-backed expectations").
182 594 U.S. 139 (2021).
183 Aziz Z. Huq, Property Against Legality: Takings after Cedar Point, 109 Va. L. Rev. 233, 238–39 (2023).
184 Cedar Point, 594 U.S. at 149.
185 Aziz Huq & Zachary Clopton, Agonistic Federalism, 104 Tex. L. Rev. (forthcoming 2026) (manuscript at 39), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5393906.
186 Id.
187 See id. at 40 n.229; Thomas W. Merrill, Anticipatory Remedies for Takings, 128 Harv. L. Rev. 1630, 1632 (2015).
188 Much of the case law on access-based takings after Cedar Point has centered on COVID-19 eviction moratoria and government invasions for inspections or pre-condemnation surveys. See, e.g., Betty Jean Strom Tr. v. SCS Carbon Transp., LLC, 11 N.W.3d 71, 93 (S.D. 2024) (pre-condemnation surveys do not constitute takings); Gonzales v. Inslee, 504 P.3d 890, 904–05 (Wash. Ct. App. 2022), aff’d, 535 P.3d 864 (Wash. 2023) ("eviction moratorium did not constitute an unconstitutional taking without compensation"); Cmty. Hous. Improvement Program v. City of New York, 59 F.4th 540, 551–52 (2d Cir.), cert. denied, 144 S. Ct. 264 (2023) (rent control rules do not constitute a taking). But see Heights Apartments, LLC v. Walz, 30 F.4th 720 (8th Cir. 2022) (landlord plaintiffs had alleged a plausible takings claim based on executive order forbidding nonrenewal and termination of leases).
189 See Cedar Point Nursery v. Hassid, 594 U.S. at 161.
190 Id. at 159.
191 Id.
192 See id. at 159 ("[W]hile a single act may not be enough, a continuance of them in sufficient number and for a sufficient time may prove [the intent to take property]. Every successive trespass adds to the force of the evidence." (quoting Portsmouth Harbor Land & Hotel Co. v. United States, 260 U.S. 327, 329–30 (1922))).
193 See Complaint, United States v. New York, 810 F. Supp. 3d 329 (N.D.N.Y. 2025).
194 8 U.S.C. § 1357(a)(3).
195 28 U.S.C. § 1491; Gregory C. Sisk, Litigation with the Federal Government 328 (4th ed. 2006); Merrill, supra note 187, at 1630; see also Richard H. Fallon, Jr., Of Legislative Courts, Administrative Agencies, and Article III, 101 Harv. L. Rev. 915 (1998) (discussing non-article III courts, like the Court of Claims). The Court of Federal Claims can provide some limited "incident[al]" and "collateral" relief in addition to a monetary judgment "directing restoration to office or position, placement in appropriate duty or retirement status, and correction of applicable records" in order "[t]o provide an entire remedy." 28 U.S.C. § 1491(a)(2).
196 Merrill, supra note 187, at 1630; see also id. at 1633 ("Anticipatory relief is discretionary, and should be allowed only if a claimant can show that important private or governmental interests would be served by allowing such relief.").
197 Id. at 1643–44.
198 Id. at 1644.