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.