On September 14, 2022, 48 migrants, the majority of whom were Venezuelan nationals, boarded two privately chartered planes in Texas, destined for Massachusetts.[i] The migrants boarded the charter planes after a few locals had approached them and promised them employment opportunities, housing, and immigration assistance.[ii]Instead, they arrived on Martha’s Vineyard, an island located off the coast of Massachusetts, where they were left stranded on the tarmac.[iii] The next day, Ron DeSantis, Governor of Florida, took credit for their relocation and announced that he will continue to transport more migrants using the $12 million set aside from an approved tax appropriation bill.[iv] Many were outraged by the Governor’s actions, calling it a “political stunt,” while others commended him for drawing attention to the border crisis.[v] While some are wondering whether the Governor’s actions may be considered a crime, the real question is whether the migrants stranded in Massachusetts are entitled to any relief.[vi]

On September 20, 2022, three of the 48 migrants filed a class action lawsuit in the United States District Court for the District of Massachusetts.[vii] The migrants alleged multiple constitutional violations, including the 4^th and 14^thAmendments, pursuant to 42 U.S.C. § 1983.[viii] Under Section 1983,

[A]ny person who, under color of any [law]… of any State… subjects, or causes to be subjected, any … person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”[ix]

In other words, an individual has the right to sue a state government official for any conduct considered an abuse of power that deprived the individual of his or her civil rights.

This lawsuit named as Defendants: Governor Ron DeSantis, in his personal and official capacity, Secretary Jared Perdue, in his personal and official capacity, the State of Florida, the Florida Department of Transportation, and some unidentified John Does.[x] The unidentified John Does were the men and women in Texas who convinced the migrants to board the plane to Massachusetts.

In their complaint, the migrants seek declaratory judgment, injunctive relief, and a monetary award of “compensatory, emotional distress, and punitive damages” against Governor DeSantis and Secretary Perdue.[xi]Unfortunately, their claim for damages will surely fail.

Official Capacity

When a lawsuit is filed against a government official in his or her ‘official’ capacity, the plaintiff directs his or her lawsuit against the public office that the government official represents.[xii] In this case, the migrants have filed their lawsuit against two public officials: Governor DeSantis, who represents the State of Florida, and Secretary Jared Perdue, who represents the Florida Department of Transportation.

In 1989, the Supreme Court ruled that the term “person” in Section 1983 does not apply to state officials.[xiii] A ruling which has been repeatedly upheld in the Massachusetts District Court and the United States Court of Appeals for the First Circuit.[xiv] Accordingly, following precedent, it is foreseeable that the Massachusetts District Court will immediately dismiss all claims for monetary damages brought by the migrants against Governor DeSantis and Secretary Perdue, in their official capacities, the State of Florida, and the Florida Department of Transportation.

Personal Capacity

So, this leaves the named Defendants, Governor DeSantis and Secretary Perdue, in their personal capacities, and the unidentified John Does. When a lawsuit is filed against a government official in his or her ‘personal’ capacity, the plaintiff is suing the individual for his or her personal assets. Under Section 1983, a government official in his or her personal capacity is considered a “person” and may be found liable for his or her individual actions.[xv] While Governor DeSantis publicly announced that he had approved the transportation of migrants to Martha’s Vineyard, as a state actor, he still has the defense of qualified immunity.[xvi]

Qualified immunity protects state actors from civil damages when “performing discretionary functions,” unless their conduct clearly violates “established statutory or constitutional rights of which a reasonable person would have known.”[xvii] Discretionary acts “involve an element of judgment or choice.”[xviii] Here, Governor DeSantis’s decision to transport the migrants to Marta’s Vineyard was a choice, not an act prescribed by a statute, regulation, or policy. [xix]Therefore, the Governor’s conduct was discretionary in nature.

But did his conduct violate any established statutory or constitutional rights?

To establish that a government official’s conduct clearly violates a statutory or constitutional right, the courts must have either “previously ruled that materially similar conduct was unconstitutional, or if a general constitutional rule already identified in the decisional law applies, [it applies] with obvious clarity to the specific conduct at issue.”[xx]

Three years prior, President Trump proposed the idea of shipping migrants to sanctuary cities to the Department of Homeland Security (DHS).[xxi] This would have been a great opportunity to establish whether transporting migrants at a government official’s discretion was a violation of the 4^th Amendment right against unreasonable seizures. Unfortunately, this proposal was shut down due to expenditure concerns, not constitutional concerns.[xxii]  In other words, DHS did not provide any official guidance on whether President Trump’s proposal would have violated any constitutional rights. Due to the lack of previous court rulings or official guidance from DHS, there is no existing law or guidance that would have given Governor DeSantis “fair warning that [his] conduct violated the [migrants’] constitutional rights.”[xxiii] Therefore, the claims for monetary damages against Governor Ron DeSantis in his personal capacity would most likely be dismissed.

These same facts apply to Secretary Perdue. In the complaint, the migrants allege that “the $12 million in funding that Defendant DeSantis is using to execute his relocation scheme is appropriated to the Florida Department of Transportation which Defendant Perdue heads and under whom direct administration of the Department is placed.”[xxiv]As head of the Florida Department of Transportation, Secretary Perdue is also a state actor with discretionary power and therefore has qualified immunity for this conduct. Therefore, the claims for monetary damages against Secretary Perdue in his personal capacity would also most likely be dismissed.

Conclusion

While the class action lawsuit may still have its day in court concerning the request for declaratory judgment and injunctive relief, it looks like the Florida Treasury, Governor DeSantis’s, and Secretary Perdue’s wallets are quite secure.

So, who’s left on the hook for the claim for money damages? The unidentified John Does.

As nonstate actors, the unidentified John Does do not have the luxury of the qualified immunity defense. If the Court declares that the transportation of the migrants did, in fact, violate their constitutional rights, then the John Does may be found liable for the damages incurred if they are ever found. [xxv]

[i] See Stef W. Kight, Scoop: Biden officials to discuss “litigation options” over migrant buses, Axios (Sep. 15, 2022), https://www.axios.com/2022/09/15/desantis-marthas-vineyard-migrants-biden.

[ii] See Alianza Americas v. DeSantis, No. 1:22-cv-11550 (D. Mass. Sep. 20, 2022).

[iii] See Id.

[iv] See Amy Simonson, et al. Desantis claims credit for sending 2 planes carrying migrants to Martha’s Vineyard in Massachusetts, CNN (Sep. 15, 2022), https://www.cnn.com/2022/09/14/politics/marthas-vineyard-massachusetts-migrants-planes.

[v] See Kight, supra note 1; See also Carmen Sesin & Suzanne Gamboa, Desantis sending asylum-seekers to Martha’s Vineyard divides Venezuelan Americans, NBC News (Sep. 16, 2022, 12:39 pm), https://www.nbcnews.com/news/latino/desantis-sending-migrants-marthas-vineyard-divides-venezuelan-american-rcna47972.

[vi] See Matt Adams, Desantis defends Martha’s Vineyard migrant flights after Texas investigation opens, NPR (Sep. 20, 2022, 12:35 pm), https://www.npr.org/2022/09/19/1123975684/texas-sheriff-criminal-investigation-desantis-migrant-flight-marthas-vineyard.

[vii] See Alianza supra note 2.

[viii] See Id.

[ix] 42 U.S.C. §1983.

[x] See Id.

[xi] See Alianza supra note 2.

[xii] Feliciano v. Dubois, 846 F. Supp. 1033, 1043 (D. Mass. 1994).

[xiii] See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989).

[xiv] See Poirier v. Mass. Dep’t of Corr., 558 F.3d 92, 97 (1st Cir. 2009); See also Elliott v. Cheshire Cty., 940 F.2d 7, 12 (1st Cir. 1991); See alsoFeliciano, 846 F. Supp. at 1044.

[xv]Braga v. Hodgson, 605 F.3d 58, 62 (1st Cir. 2010).

[xvi] Feliciano, 846 F. Supp. at 1044.

[xvii] Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982).

[xviii] United States v. Gaubert, 499 U.S. 315, 322 (1991).

[xix] See Id.

[xx] Guillemard-Ginorio v. Contreras-Gomez, 585 F.3d 508, 527 (1st Cir. 2009).

[xxi] See Brooke Singman, Trump doubles down on plan to ship migrants to sanctuary cities, says ‘Radical Left’ should be happy, FOX News (Apr. 12, 2019, 1:04 pm), https://www.foxnews.com/politics/trump-doubles-down-on-plan-to-ship-migrants-to-sanctuary-cities-says-radical-left-should-be-happy.

[xxii] See Id.

[xxiii] Guillemard-Ginorio, 585 F.3d at 527.

[xxiv] See Alianza supra note 2.

[xxv] See Heather McCarron, Latino civil rights group offers $5K reward to find woman who ‘baited’ migrants to Vineyard, Cape Cod Times (Sep. 18, 2022), https://www.capecodtimes.com/story/news/2022/09/18/latino-civil-rights-group-offers-reward-woman-who-baited-migrants-marthas-vineyard/10413159002.