Qualified Immunity

SCOTUS Rules That Federal Agents Can Be Sued When They Violate Your Rights

Now do qualified immunity.


The Supreme Court last week unanimously ruled in Tanzin v. Tanvir that a trio of Muslim men may sue a group of FBI agents for damages after the government officials put them on the no-fly list for refusing to spy on their own communities. It's been hailed as a win for religious liberty, and it is. But the ruling also strikes at something deeper: namely, that the tide may be turning on how we are able to hold public officials accountable when they violate our constitutional rights.

Muhammad Tanvir, Jameel Algibhah, and Naveed Shinwari allege that the FBI harassed them at their workplaces, confiscated their passports, and stripped them of their travel privileges after they declined to act as informants, costing them money on lost airline tickets and squandered job opportunities. They then sued under the Religious Freedom Restoration Act (RFRA) of 1993, which prevents the government "from substantially burdening a person's exercise of religion" and authorizes litigants to pursue "appropriate relief" when such rights are infringed on. Yet while the Department of Homeland Security eventually removed the respondents from the no-fly list, the government countered that the "appropriate relief" referenced in the statute does not allow for monetary damages.

Writing for the unanimous panel, Associate Justice Clarence Thomas categorically rejected that argument. "A damages remedy is not just 'appropriate' relief as viewed through the lens of suits against Government employees," he said. "It is also the only form of relief that can remedy some RFRA violations. For certain injuries, such as respondents' wasted plane tickets, effective relief consists of damages, not an injunction."

Any other response would defy common sense. Put plainly, the FBI held that, while private actors can be subject to lawsuits when they misbehave, a job with the federal government should in and of itself serve as an invincible liability shield.

"At stake in this case was whether these individuals would be able to even open the courthouse door and sue federal officials for violations of their religious rights," says Anya Bidwell, an attorney with the Institute for Justice, which filed an amicus brief in Tanzin. "The government argued that simply because the suit was for damages, it meant that they can't open that courthouse door."

Fortunately, they will now be able to open that door and plead their case. In his ruling, Thomas invoked Section 1983, the country's foremost civil rights statute that permits Americans to sue public officials when they impinge on their rights. "RFRA uses the same terminology as §1983 in the very same field of civil rights law," wrote Thomas. It is not the high court's job to create laws where they do not exist, he added, which the government was effectively asking them to do. "To be sure, there may be policy reasons why Congress may wish to shield Government employees from personal liability, and Congress is free to do so," Thomas said. "But there are no constitutional reasons why we must do so in its stead."

He is correct. It's all the more troubling, then, that the Supreme Court did exactly what Thomas is cautioning against when they created qualified immunity, the legal doctrine that makes it considerably harder to hold public servants accountable for civil rights violations.

In deciding Harlow v. Fitzgerald (1982), the high court ruled that state officials should be shielded from federal lawsuits under Section 1983 unless the misbehavior alleged by the plaintiff has been outlined almost exactly in a prior court precedent. There was no law on the books requiring that the justices validate such an accountability shield. On the contrary, instead of ruling to uphold Section 1983, as is their job, the Supreme Court cut directly against the law when they devised qualified immunity.

The result has been disastrous for victims of government abuse. Consider the two police officers who stole $225,000 while executing a search warrant in Fresno, California. The two men "ought to have recognized that the alleged theft was morally wrong," wrote the U.S. Court of Appeals for the 9th Circuit. But the cops "did not have clear notice that it violated the Fourth Amendment," according to the judges, because no previous case law existed expressly decreeing that stealing violates one's rights. They both got qualified immunity, and their victims could not sue for damages.

Qualified immunity has similarly protected two cops who assaulted and arrested a man for standing outside of his own house, two cops who sicced a police dog on a surrendered suspect, a cop who kneed a subdued man in the eye "20 to 30 times" and left lasting damage, a cop who heavily damaged a man's car during a bogus drug search, a cop who shot a 10-year-old, and a cop who shot a 15-year-old.

To be clear, the FBI was not claiming qualified immunity in Tanzin. They went a step further, asserting that no request for monetary damages under the RFRA should ever make its way to a courtroom, with or without a previous case precedent. But there's something significant about Thomas's opinion, which cites the same civil rights statute and faulty line of reasoning used to conjure qualified immunity out of thin air. Is the Supreme Court ready to rectify their error?

The justices have recently declined to hear a slew of petitions that would have them reconsider the doctrine. But just last month, they overturned a decision granting qualified immunity to a group of prison guards who locked a naked inmate in two squalid cells, one covered with "massive amounts" of human feces and the other with raw sewage overflowing onto the floor via a clogged drain. The U.S. Court of Appeals for the 5th Circuit had acknowledged the guards acted unconstitutionally but awarded them qualified immunity based on the fact that the exact amount of time the inmate spent in those conditions was not outlined somewhere in a prior ruling.

But while the Supreme Court's decision gave relief to the plaintiff, it did not alter the legal doctrine itself. SCOTUS may continue to demur at the opportunity to reconsider qualified immunity, perhaps in the vein of Thomas's reminder: They are not there to make policy, after all. But such an approach ignores that it was the high court that eschewed separation of powers to legislate into existence a doctrine that has allowed public officials to get away with corruption unscathed. You broke it, you fix it.

NEXT: I Asked for Public Records on a Fatal Police Shooting. Then a Washington Sheriff’s Office Sued Me.

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  2. “”To be sure, there may be policy reasons why Congress may wish to shield Government employees from personal liability, and Congress is free to do so”

    Since Congress hasn’t done such a thing in this case, the Court is merely uttering dictum. Non-binding dictum upholding a hypothetical law Congress didn’t pass.

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  3. Cue up the ” Stupid Reason things QI is a panacea that will solve all police abuse” strawman.

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      1. Oh boo hoo, sorry to burst your bubble.

    2. I think that was a one time thing. See, evil demonrats had proposed ending QI, so Jesse needed something, anything to use as an excuse to criticize. If no demonrats are involved in this case, I don’t think we’ll hear the same arguments.

  4. In a future article when there’s another terrorist attack reason will ask why didn’t the fbi or intelligence services know beforehand and why were their hands tied?

    1. why were their hands tied?

      And why weren’t they wearing masks?

    2. So if we don’t let LEOs abuse citizens wihtou consequence then LEOs will refuse to do their jobs and protect us from terrorists.
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  5. They are not there to make policy, after all. But such an approach ignores that the court broke that very promise in 1982, eschewing separation of powers to legislate into existence a doctrine that has allowed public officials to get away with corruption unscathed.

    Did the Court in 1982 say that they were making policy at the time? Or did they say that what with these modern times, the words of the Constitution now meant something different than they used to? Or did they cite laws and precedent and legal principles to swear and be damned they were faithfully executing the law and upholding the Constitution with this ruling? I’ll bet it was that third one. Now suddenly they’re going to reverse themselves and admit they were wrong and that they were just talking out their ass when they made that ruling? No, no, the Court just can’t rule that they fucked up, they made a mistake, that they were wrong – that leads to the peasantry questioning their infallibility and their divinity and we can’t have that. The Court has to find some way to reverse themselves while at the same time claiming they are not reversing themselves but in fact upholding the precedent.

    Meanwhile, this is a pretty good indication that there’s so much shit in the law that you can make any decision you feel like and you’re going to be able to find precedents and legal principles and laws to justify your decision – and if you can find justifications for any ruling you please, it’s just the same as having no justification at all. It’s just FYTW all the way down.

    1. The court created the part where there has to be a previous ruling that exactly matches the circumstances of the violation in question before there can be any recourse.

      1. Yep. Funny how “clearly established law” does not apply to regular rubes when they violate any one of the millions of laws and regs on the books.

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  6. may sue a group of FBI agents

    That was not the ruling. At all. The ruling was about damages. Not about filing a lawsuit.

    1. Huh, on a more careful reading, you’re right. The headline has it incorrect, but the details are in the article.

  7. Can be sued? They can face criminal charges, if the DA and the Justice Department ever step up and do their jobs.

    1. “Qualified Immunity” is the ONLY barrier between accountability and the public. Ignore the chain of failures that extend into outer space.

  8. A strange way to “drain the swamp.”

    The Deep State protects itself but Binion finds a way to blame Trump. Luckily problem solved right?

    Stupidity hurts.

    But the cops “did not have clear notice that it violated the Fourth Amendment,” according to the judges, because no previous case law existed expressly decreeing that stealing violates one’s rights.

    Note how closely this ridiculous framing follows union rulings. This is what happens when we allow one side of an adversarial relationship to have no accountability for truth or even sanity.

  9. The government can be such a quibbling bitch sometimes.

  10. Now do qualified immunity.

    And when you do do it, do it like Colorado didn’t.

  11. The key takeaway is that we need a qualified immunity case where the victim is a Muslim. Then the lefties on the court will get on board as well.

    1. As someone on these boards said many moons ago, if you have a political cause… no matter what it is, make goddamned sure your spokesperson is a woman in a hijab.

  12. What’s the point of working for the government if you can’t violate citizens’ rights with impunity?

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  14. So can IJ start a class action suit of the people of the United States v’s FBI, ATFE, CIA, NSA, FDA, USDA, etc?

  15. Prosecutors enjoy not qualified immunity, but absolute immunity. That is unless the alleged misconduct happened during the investigative phase rather than the prosecutorial phase. In that case they enjoy only qualified immunity. Prosecutors have tremendous autonomy as to what charges are brought, and virtually never pay a penalty for piling on charges to intimidate the accused into a plea agreement. Charges are dismissed, and there is no harm and no foul–except for the defendant and to the principle of due process.

  16. How about eliminating absolute immunity first. Once that is done, go after qualified immunity.

  17. “Now do qualified immunity”

    Then do Miranda.

  18. Government officialdom, aka “officialdumb” should be held to a higher standard of behavior than is John and or Jane Q. Public, aka The Private Citizen. After all, officialdom took an oath of office, or might they have had their fingers crossed.

    This entire business of Qualified Immunity should long since have been placed on the garbage pile of history. Why hasn’t it been so disposed of?

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  20. The cops didn’t know that stealing was wrong? There should be an IQ minimum of at least 60 to be a police officer. Come on.

    1. Someone with an IQ of 60 probably knows stealing is wrong. It takes a more than a little brains to come up with a reason that it’s OK _for yourself_, when part of your job is to arrest thieves.

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