Law

'If You Wear a Federal Badge, You Can Inflict Excessive Force on Someone With Little Fear of Liability,' Complains Judge Don Willett

A federal judge protests the Supreme Court’s “rights-without-remedies” Bivens doctrine.

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In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (1971), the U.S. Supreme Court said that federal officers who allegedly violate a citizen's constitutional rights may be sued for damages under certain circumstances by that citizen. But as federal Judge Don Willett complained in a stinging opinion filed this week, the Supreme Court has since undermined Bivens to such a grave extent that "if you wear a federal badge, you can inflict excessive force on someone with little fear of liability."

Willett's protest came in the case of Byrd v. Lamb (2021), which was decided by the U.S. Court of Appeals for the 5th Circuit, upon which Willett sits. The matter centered on the actions of Department of Homeland Security Agent Ray Lamb, who was arrested for aggravated assault with a deadly weapon and misdemeanor criminal mischief after an altercation in a hospital parking lot with Kevin Byrd, the ex-boyfriend of Lamb's son's girlfriend.

According to Byrd, Lamb threatened him with a gun and tried to smash the window of his car. Then, after Byrd called the cops for help, noted the 5th Circuit, "Agent Lamb identified himself as a federal agent for the Department of Homeland Security, and one of the officers immediately handcuffed and detained Byrd for nearly three hours." Byrd was released and Lamb was arrested only after the cops reviewed the security footage.

The question before the 5th Circuit was whether Byrd's civil rights lawsuit against Lamb could proceed under Bivens or whether the suit should be thrown out. The 5th Circuit held that Byrd's lawsuit must be dismissed.

Judge Willett regretfully concurred with that result. "Middle-management circuit judges must salute smartly and follow precedent," he explained. "And today's result is precedentially inescapable: Private citizens who are brutalized—even killed—by rogue federal officers can find little solace in Bivens."

Willett then blamed SCOTUS for that sorry state of affairs. "For four decades now," he observed, "the Supreme Court, while stopping short of overruling Bivens, has 'cabined the doctrine's scope, undermined its foundation, and limited its precedential value.' Since 1980, the Supreme Court has 'consistently rebuffed' pleas to extend Bivens, even going so far as to suggest that the Court's Bivens trilogy was wrongly decided."

The unfortunate upshot, Willett noted, is that "redress for a federal officer's unconstitutional acts is either extremely limited or wholly nonexistent, allowing federal officials to operate in something resembling a Constitution-free zone."

Willett concluded with an urgent plea for reform. "A written constitution is mere meringue when rights can be violated with nonchalance," he wrote. "I add my voice to those lamenting today's rights-without-remedies regime, hoping (against hope) that as the chorus grows louder, change comes sooner."

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  1. According to Byrd, Lamb threatened him with a gun and tried to smash the window of his car. Then, after Byrd called the cops for help, noted the 5th Circuit, “Agent Lamb identified himself as a federal agent for the Department of Homeland Security, and one of the officers immediately handcuffed and detained Byrd for nearly three hours.” Byrd was released and Lamb was arrested only after the cops reviewed the security footage.

    Maybe I need to up my dose of autism meds, but it’s weird that a paragraph starts with “Byrd alleged” ends with “video evidence shows what Byrd alleged”. I can’t tell if it’s narrative flourish or a tacit admission that video footage isn’t the be-all, end-all of evidence discovery.

    1. I think it’s an explanation of timing. Plus adding details that might not have been perfectly observable on the video. As I read that paragraph:
      1. Lamb threatens – physical movements might be on the video but if the threat included verbal components, that would not typically be captured.
      2. Byrd calls for help.
      3. Lamb identifies himself.
      4. Byrd is handcuffed.
      5. Time passes.
      6. Someone finally reviews the video. Lamb’s version of the story is discredited (which is not quite the same as saying that Byrd’s version is confirmed). Byrd is released.

  2. “I add my voice to those lamenting today’s rights-without-remedies regime ….”

    The Second Amendment exists for a reason.

    1. But it appears that you only have those God given rights, allegedly secured by the second amendment, in a constitution-free zone.

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  4. It seems that individual qualified immunity needs to be separated from organizational immunity.
    QI allows individual actors to hid behind the broad shield of having acted within the scope of their ‘training’, and whether the individual actors were required to know through prior court cases that their acts were illegal.
    Instead, view rights from the perspective of the aggrieved, and compensation on what they lost. If their rights were violated by government actors, then they deserve compensation from the government. And without need to prove that the individuals involved knew anything of the legality, or were or were not acting within the scope of training.
    Agencies thus penalized may then respond internally as would any business that finds within their ranks certain employees cost them more money than they are worth. I know I’m dreaming.

    1. That would be a pretty good model. In many cases, I’d even support a model where the victim sues the government regardless and the government has to seek reimbursement their own rogue bad actors.

      The only filter you’d have to make sure we didn’t lose is the distinction between active liability and passive. If the Army Corps of Engineers drive a bulldozer through your house, they’re liable. If your home floods because they didn’t a preventative ditch, their liability is a lot more questionable.

  5. “‘If You Wear a Federal Badge, You Can Inflict Excessive Force on Someone With Little Fear of Liability,’ Complains Judge Don Willett”

    There’s the family of a woman protestor who understands this quite well.

    1. Say Her Name

      1. Hillary Clinton?

      2. Elizabeth Warren?

      3. I’ll say it. Ashli Babbit. Her death is not a fucking joke.

  6. Citizen L assaulted Citizen B, B called the cops, L lied to cops, cops briefly detain B, investigate, then arrest L.

    Call me crazy, but I too dont see where this becomes a Federal Civil Rights case. It seems Willet and Root want to stretch Bivens from Officers acting under cover of authority, to just being an officer. Lamb did not violate Byrds civil rights, he garden variety assaulted him and lied to the cops – just like almost every domestic dispute in history. Lamb asked the cops to violate Byrds civil rights, and the only harm was a brief detainment while they investigated
    Hebwould have had to stay and give a statement any way.

    This is a murky area. Lamb didnt do the violating of rights , he asked the local cops to. Had he put Byrd in his vehicle or taken him to his office, that would have been clear cut abuse of authority. Lamb should pay for assault, destruction of property, and brandishing a weapon, just like anyone else.

    Bad cases make bad law. We dont need to stretch a doctrine to where Off duty LEOs become “less than” citizens subject to more punishment just for being LEOs.

    1. ++

    2. Does “color of law” mean nothing to you?

      Cops like laws which make assaulting or killing a cop more criminal than assaulting or killing a civilian. But they don’t like being held the slightest bit accountable for doing things under the color of law that would send a civilian to jail.

      That’s what happened here. The cop used his cop status to threaten and assault his victim, then used his cop status to get his victim arrested. That kind of shit needs to be as extra-accountable as his cop status was extra credible during his assault and when he lied to the other cops who arrived at the scene.

      1. “color of law” is now a racist phrase. Please be more respectful.
        Thanks

        1. But I can’t say “white of law” or “black of law”, both of which are uncolored in different circumstances.

          1. Under the “blue streak of law”.

            1. Sorry, under the “blue streak of the @!#$%#$&^%**( law”.

      2. I was good friends with an FBI agent many years ago. My understanding at the time was that federal cops are technically on duty 24/7/365. He carried his government issued handgun everywhere we went. He told me he was required to.

      3. The assault had nothing to do with “the color of law”, at least not with the version presented here.

    3. Agent Lamb identified himself as a federal agent for the Department of Homeland Security, and one of the officers immediately handcuffed and detained Byrd for nearly three hours.

      Would need to see the video and hear Officer, The’s testimony. If he said “I’m a Federal Agent!” and then proceeded to perjur himself or insist Byrd be arrested it would/could constitute obstruction and/or and abuse of power; and while we wouldn’t hold your average person to such a standard, your average person would just be arrested for claiming to be a Federal Agent falsely.

      Beyond the above, there’s still a rather poignant question that I’m pretty sure I know the answer to and that’s, “Does Lamb still have a job?” Which, may or may not speak to an abuse of power in such a criminal proceeding and gets pretty directly to the heart of what Willett is saying.

    4. I’ll give the local cops props at least for this utterly shocking and extremely rare twist: “Byrd was released and Lamb was arrested….”

    5. You make a good point.

      I guess I wonder two things:
      1. Are you ever off duty as a federal officer?
      2. Should officers of the law know better and be held to a higher standard?

      In this case, the reason Byrd was placed in custody was the illegal actions of a federal officer using his badge as his proof. That sure seems like liability to me.

      The higher standard has precedent. For instance, military officers are held to criminal standards for adultery.

  7. Judge Willett regretfully concurred with that result. “Middle-management circuit judges must salute smartly and follow precedent,” he explained. “And today’s result is precedentially inescapable: Private citizens who are brutalized—even killed—by rogue federal officers can find little solace in Bivens.”

    It undermines the sanctity of court decisions to constantly be re-visiting them and declaring previous decisions to have been wrongly decided. Stare decisis is the cornerstone of faith in the rule of law. Isn’t that right, Justice Kavanaugh? Even if a foolish consistency is the hobgoblin of little minds, consistent we must be.

    1. That may be true, but Lamb getting arrested for assaulting a potential daughter in law’s ex means he is paying the price, and Byrd suffered no real violation of rights under authority

      1. You don’t need to suck up to cops here. They don’t read this blog. That kind of virtue signalling does you no good here.

        1. Speaking of cops reading this blog, what ever happened to Dunphy?

          1. Fucked to death by a sounder of hogs, ironically.

      2. but Lamb getting arrested for assaulting a potential daughter in law’s ex means he is paying the price

        No it doesn’t. If you assaulted someone with a deadly weapon and there were video footage of it would you expect just an arrest or an arrest, a trial, probable loss of a job, and some prison time? When he’s in a cell or ankle braceleted to his couch without pay, *then* he’s paying the price.

      3. You are correct, but the fact he was able to get as far as he did by flashing a badge is the real problem here. I don’t really blame the local police because they rectified the mistake quite quickly.
        This just reminds me of every dirty cop trope on
        TV. There just have to be consequences and really really stiff ones at that.

    2. >>the sanctity of court decisions

      Marbury v. Madison requires revisit.

  8. Six Unknown Named Agents of Federal Bureau of Narcotics (1971)

    Also present during the proceedings were 12 angry men, 4 non-blondes, 10000 maniacs, me, and Bobby McGee.

    1. if lust and hate is the candy …

  9. It makes no sense that agents charged with upholding the consititution adn hte laws of the country created under it are not held accountable by those same laws and standards.

    Imagine if the standard for prosecuting a federal agent also applied to the citizenry at large. How many fewer people would be charged with crimes if they had to have a prior case exactly matching those details to highlihgt that teh behavior wasnt allowed?

  10. Was Lamb tried for the assault? This seems like an important detail.

  11. I was thinking the same and, sure enough, here’s the money shot:

    The officers eventually took the federal agent into custody and he was charged with aggravated assault with a deadly weapon. The charges were dismissed a little more than four months later when a grand jury found no probable cause against Lamb, according to Montgomery County court records.

    Sufficient video footage to convince officers at the scene to release Byrd *and arrest Lamb* and the criminal case gets tossed.

    1. Whoops, above meant in reply to Bubba.

    2. “The charges were dismissed a little more than four months later when a grand jury found no probable cause against Lamb, according to Montgomery County court records.”
      At the same meeting however they did recommend that a ham sandwich be indicted.
      The prosecuting attorney declared at a subsequent news conference that justice had been served.

  12. Uh, maybe if plaintiffs’ attorneys wouldn’t be so greedy for 1988 fees and being these as state tort negligence claims, they wouldn’t run into such obstacles?

    1. Section 1988 does not apply to Bivens actions.

  13. Stop pissing and moaning and do something that will actually change the corrupt status quo.

    1. Make it an inalienable right for everyone to record what they witness.

    2. Criminalize lying.

    That’s it. Done.

    The first corrupt dipshit that tells you to stop recording will be recorded violating your rights. Crooks will be at each other’s throats. Every crime recorded by passers by. Apps coordinating recordings to trace criminals to their homes and who they work with. Politicians and lawyers will have to stop lying.

  14. Willet was on Trump’s Scotus list. No way Biden nominates him. Fuck you Damon and Fuck Reason.com.

    1. I’m both horrified and confused by your comment. I wish Mr. Willet had been nominated and confirmed, but I’m not sure how Mr. Root and Reason.com caused that not to happen. In fact, I would venture to guess they both parties would have (or probably did) heartily endorsed Mr. Willet. What particular bug is up your ass?

  15. Judge Willett has a good point as far as it goes – feds are too unaccountable.

    I’d add that city cops, under appointed chiefs, are too.

    The transportation and communication excuses for both feds and city cops in addition to deputies under elected and accountable sheriffs are long antiquated by technological improvements in both. Eliminate them.

  16. Byrd v. Lamb? Let me guess…decided by Judge Wolf or Judge Fish?

  17. Remember, cowboys make it look easy. Just loop a noose, call it a lasso, and throw it over an arrestable prospect; then pull it tight. Proceed to wrap the rope around the arrestee.

    But if you think you need deadly weapons to immobilize anyone, that sort of thinking would be absurd.

    Your military can build weapons to destroy the whole world a thousand times over, but you can’t immobilize someone who should be arrested without using brutal force? C’mon!!

  18. The article does not mention the important fact that Lamb was criminally charged, as he should be, and leaves the impression that what he did went completely unpunished because he is federal officer. What he did was plain criminal act, which he did as an individual and for which he was promptly arrested – rather than as federal officer violating Byrd’s civil rights.

  19. Did this mental patient in a black robe just say that dismissing the citizen’s lawsuit against the government was the wrong thing to do while he voted for dismissal?

    1. Yes. Ethically and legally, it was the “right” thing to do. Morally it was wrong. He voted to keep his job.

      I wouldn’t have done that, but then again, I don’t work in law for that very reason.

  20. I have no doubt that Congress can choose to limit the power of the *federal* courts to hear this kind of suit.

    Of course, if the federal courts are denied jurisdiction, one would think that the state courts would have the ability to fill in the vacuum thus created.

    After all, the Founders recognized the right of the people to sue for damages if they suffered injury in their persons, property and reputations (and the Ninth Amendment makes clear this right was never abolished).

    But they have all sorts of ways to deny these cases a hearing in both federal *and* state courts.

    If they said “well, under Bivens the federal courts can’t hear this case, so it will go to the state courts instead,” then I bet they’d get Bivens overruled pretty quickly, to make sure that only federal courts hear these suits.

    1. Instead of Bivens I should have said “the cases which restrict and limit Bivens”

  21. Do you suppose that the Capitol Police can use QI to escape consequences for aiding protestors on Jan 6?

  22. Lets face it…whenever the Supreme Court has to confront any action by law enforcement personnel they revert to their natural state: ex-prosecutors enabling their agents.

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