Criminal Justice

The DHS Agent Who Tried To Kill Kevin Byrd Can't Be Sued—Because He Works for the Federal Government

It's almost impossible to hold federal officers to account.

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Department of Homeland Security (DHS) agent Ray Lamb was not acting in his professional capacity when he approached Kevin Byrd in the parking lot of a Texas bar and allegedly threatened to "put a bullet through [his] fucking skull," nor was Lamb on duty when he took his gun and attempted to smash the window of Byrd's car. He was acting as a private citizen when he made those threats, which also included pulling the trigger. Luckily for Byrd, the gun jammed.

But Lamb has an advantage most other would-be murderers don't: That gun was given to him by the government in his capacity as a federal law enforcement officer. Now, Lamb's badge is insulating him from responsibility for his actions, as current legal doctrine essentially makes it impossible to hold federal officers accountable in civil court—even for actions taken in their personal lives.

"It's the definition of official corruption," says Anya Bidwell, an attorney with the Institute for Justice (IJ), a public interest law firm representing Byrd in a suit against Lamb. "He used the power given to him by the federal government to benefit his own private interests."

On the morning of February 2, 2019, Byrd arrived at a bar in Conroe, Texas, to speak with someone on-site who could shed light on a gruesome car crash his ex-girlfriend, Darcy Wade, had been in after leaving that establishment in the hours prior. Unsure she'd survive, Byrd had just visited her in the hospital after Wade's new boyfriend—an inebriated Eric Lamb, Ray Lamb's son—drove headlong at 70 miles per hour into a Greyhound bus.

Lamb approached Byrd as he sought to leave the parking lot, furious that Byrd was collecting details on his son's drunk driving. Both men dialed 911, but it was Byrd who ended up in the back of a police car.

"If I tried to do this and Kevin called police…they would immediately detain me. It would be clear as day that I am the one who is trying essentially to hurt this person," posits IJ's Bidwell. "Not only is it that DHS Officer Lamb is trusted here when local police arrive, but then when you try to sue him, you can't sue him, because he happens to work for the government. There is essentially no win for plaintiffs in such cases."

Indeed, a federal court ruled in March that Lamb's federal badge also serves as a shield that grants him absolute immunity from any claim for damages without so much as a jury trial. The decision stems from Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, a 1971 Supreme Court ruling that allowed a man to sue federal officers after they performed a warrantless search of his home and later strip-searched him at a courthouse. That precedent has been watered down over the years by subsequent decisions, requiring that courts analyze if new cases follow the exact same factual framework. If not, judges are told to trash the case when there are "special factors counseling hesitation."

The decision in Byrd's case shows just how laughably subjective that standard now is. "Byrd's lawsuit differs from Bivens in several meaningful ways," wrote a panel for the U.S. Court of Appeals for the 5th Circuit. "This case arose in a parking lot, not a private home as was the case in Bivens." We are somehow supposed to believe that matters significantly enough such that Lamb could not have known his conduct was wrong. What's more, the panel wrote that "Congress did not make individual officers statutorily liable for excessive-force or unlawful-detention claims."

Such individuals are slightly more liable for Fourth Amendment violations if they work at the local or state level. But qualified immunity—another legal construct—does a great deal to protect them from accountability, as well. The doctrine holds that government officials can violate your constitutional rights without having to pay for it in civil court so long as the exact way they violated those rights has not yet been ruled unconstitutional in a prior decision from the Supreme Court or in the same federal circuit. It has protected cops who allegedly committed assault and theft, cops who violated the First Amendment, and cops who destroyed property, among others.

But though qualified immunity is difficult to overcome, it's not impossible, like the cops who didn't receive the protections after shooting a man 22 times as he lay facedown on the ground.

It is only federal officers who maintain almost complete freedom from accountability, thanks to a hole in constitutional law. For that same reason, St. Paul Police Officer Heather Weyker was able to skirt a civil court trial after fabricating a sex-trafficking ring and throwing innocent people in jail on false charges. A court said she was not entitled to qualified immunity. Yet simply because she completed that job as part of a federal task force, she will not have to pay for her transgressions—a strange loophole given only to the most powerful among us.

Byrd hopes to change that. After reviewing the security footage of that February morning, police eventually arrested Lamb, although he was not terminated from his position. Even with criminal charges filed, however, Lamb was still able to evade the suit, which is scheduled to be conferenced by the Supreme Court next month. Byrd is not the only one hoping for a reprieve. 

"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," said Judge Don Willett of the 5th Circuit, who concurred with the opinion. It was "precedentially inescapable," he said, his hands tied by past decisions. But it shouldn't be. 

"It certainly smacks of self-dealing when Congress subjects state and local officials to money damages for violating the Constitution but gives a pass to rogue federal officials who do the same," 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."

NEXT: NYC Theaters Sue Bill de Blasio, Claiming Vaccine Mandate Obstructs Free Speech

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  1. Luckily for Byrd, the gun jammed.

    Obviously the solution to this particular inability to hold federal officers accountable in civil court is to fire Lamb for not maintaining his government-issued firearm.

    1. This isn't far off. The supposed remedy to this situation is for the DOJ to indict Lamb. Unfortunately, that is asking the Elites to be held accountable by the Elites. Something that will never happen in the name of justice. It will happen in the name of one Elite being an inconvenience to another, but it will never happen for justice except by coincidence.

      1. Consider how the FBI protects the Bidens and the Clintons. Consider how it protected Epstein and Nassar as they molested young girls. If you are among the cloistered class, the rules are far different for you. It isn't about right vs wrong, it is about whether you have enough power to be useful (or a threat).

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  2. Byrd tried to silence Lamb and now he can’t be zooed.

    1. it puts the badge in the basket.

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  3. More than nine months have passed since Ashli Babbitt was shot and killed on Jan 6 by a Capitol Police Officer (who has been exonerated), but still not one article by Reason about that injustice.

    But of course, in the same nine months, Reason has written/published a dozen articles denouncing other government officials/workers who killed someone.

    1. As I understand it, capitol police have absolute immunity and are not subject to FOIA laws. But Reason is unconcerned.

      1. The officer said he was scared. He should be given free reign to start firing.

    2. Don’t fear the revolt!
      (insurrection)!

      All our times have come
      Here, but now they’re gone
      Seasons don’t fear the revolt
      Nor do the wind, the sun, or the rain
      (We can be like they are)
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      https://en.wikipedia.org/wiki/Horst_Wessel

    3. Sarcasmic is blaming trump and the right for that murder along with the open expansion of the domestic federal spying. He has completely fucking lost it.

    4. Hopefully Saint Babbitt, in the Great Beyond the Beyond, is looking benevolently down upon the neglectful Reason writers, and, in Her Mercy, She will forgive them!

      In the meantime, perhaps we faithful Reasonoid commenters can make up for the shortcomings of the Reason writers! Here, below, I give you a sample of GREAT, True Devotion to Saint Babbitt, as written by a Devout And Respectful fellow Reasonoid commenter!

      Poor Babbitt. An innocent tourist shot by a cop for no reason while peacefully milling about the Capital. It’s the worst police shooting that ever happened. Ever. Compared to choking people, suffocating them, beating them to death with fists, this is the absolute most egregious action by police to have ever happened in the known history of the universe.
      But she will remain in our thoughts. Before long we’ll erect a statue in her honor. Saint Babbitt. May she look after peaceful tourists everywhere.

      1. I wonder SQRLSY- rather than deflecting with your manic prose- do you have ANY problem with an unarmed woman being shot to death?

        Like, you seem to be arguing that she was not a saint and was technically breaking the law, so she had it coming. Is this the standard you apply to all deaths at the hands of cops? I can't really tell what position you are taking here other than "take up as much space as possible while actually saying as little as possible". So maybe you can clear that up for me.

        1. BLM rioters burned some buildings and stole some sneakers and TVs, and conservatives want to lynch BLMers! Ashli wanted to steal democracy, and conservatives want to turn Her into a Saint!

          Rioters of all stripes are to be condemned, not turned into heroes, in my mind! BUT, if I have my choice, please steal my sneakers AND my TV, and let me keep my democracy!

          https://www.theatlantic.com/ideas/archive/2021/07/theres-word-what-trumpism-becoming/619418/
          There’s a Word for What Trumpism Is Becoming
          The relentless messaging by Trump and his supporters has inflicted a measurable wound on American democracy.

          From above…

          “The conversion of Ashli Babbitt into a martyr, a sort of American Horst Wessel, expresses the transformation. Through 2020, Trump had endorsed deadly force against lawbreakers: “When the looting starts, the shooting starts,” he tweeted on May 29, 2020. Babbitt broke the law too, but not to steal a TV. She was killed as she tried to disrupt the constitutional order, to prevent the formalization of the results of a democratic election.”

          1. Oh, I see. She was a "Nazi". So she "deserved" it.

            1. Those who live by the sword, often die by the sword! One often reaps what one sows! Lay down with dogs, you get fleas!

              1. Wait....so now you're approving of the BLM rioters being lynched as well? I mean, they laid down with dogs, shouldn't they also be subject to fleas?

                If you're going to say there's some level of violent protest you're willing to accept, in your case looting and rioting across the country, why are you singling out the rioting at the US Capitol as different and subject to a different set of rules?

                I mean, other than principals over principles?

                1. "Rioters of all stripes are to be condemned, not turned into heroes, in my mind!", I wrote!

                  Can moron READ? Can moron COMPARE?

                  Would YOU rather have YOUR democracy stolen from you, instead of your sneakers and your TV? Man... At least CIVILIZED (non-barbaric, non-trumpanzee-gone-apeshit) man... Does NOT live by bread alone!

                  1. I have to bite (cannot avert my eyes from the sqrlsy trainwreck): so lets assume those in the capital building stopped the acceptance of the vote that day, go further and assume they even hurt or killed some of congress.. exactly HOW would democracy have been stolen? Those people would have been arrested and charged with even more crimes, congress would have re-convened (with or without replacements for those downed by the protest).

                    Are you saying we were moments away from a coup? Are you saying those in the building had the capability to overthrow our govt system and take charge like a war lord?

                    honestly, reading your shit it like listening to you explain the marital status of the number 5.

        2. Sarcasmic's only intention with Sqrsly is to deflect the conversation away from democrats. He has been doing that for years.

  4. What about the CDC and the nation-wide rent freeze? Why are the Supreme Court's hands not tied precedentially in this matter, being forced to rule that since they'd never ruled the CDC violated the Constitution before in this manner they were unable to do so now?

  5. One day The byrd will live with the lamb, as the buttplug lies down with the kid.

  6. So making terroristic threats, assault, intimidating potential witnesses, ethics violations, and obstruction of justice is not enough to get a DHS agent fired or jailed. But just one of those (obstruction) will get you raided by the FBI in the early hours (if you're not cop you're little people)

    Really, at what point do you concede the federal government is so corrupt that it cannot function?

    We clearly live in a police state run by proto fascist far left wankers.

    1. "We clearly live in a police state run by proto fascist far left wankers."

      Which is what we are told the voters wanted. However many actually voted.

  7. Byrd hopes to change that. After reviewing the security footage of that February morning, police eventually arrested Lamb, although he was not terminated from his position. Even with criminal charges filed, however, Lamb was still able to evade the suit, which is scheduled to be conferenced by the Supreme Court next month. Byrd is not the only one hoping for a reprieve.

    Accountability in this particular case will be Lamb being convicted of attempted murder. I understand the desire to sue federal officers, and I understand the frustration at the maddening rules surrounding that.

    But if G-Money kills my daughter in a drive-by, I don't angrily denounce the system because I wasn't able to sue G-Money in civil court, I expect an arrest, trial and murder conviction for G-Money.

    1. But you could at least still sue G-Money. The issue with suing is whether "G-Money" is an apt moniker.

  8. "Congress did not make individual officers statutorily liable for excessive-force or unlawful-detention claims."

    OK, then, if there's no Congressional statute on the subject, hold the federal officer accountable under *state* law.

    But that would violate federal supremacy! Only federal courts, not state courts, can hear claims against federal agents.

    Head I win, tails you lose.

    Perhaps the Supreme Court could tell Congress, "either you provide a remedy for federal officers' misconduct, or stand aside and let the states provide a remedy." If the court said *that,* Congress would rush to pass its own remedial statute to keep the states at bay.

    Incidentally, of the people who keep looking for creative uses for the 9th Amendment, I haven't heard much discussion of the constitutional right to sue someone who illegally injures you and collect damages. It's not an enumerated right, but it has a much better claim to be a 9th Amendment right than, say, those other "9th Amendment rights" people like to pull out of...warm and dark places.

    1. "I haven’t heard much discussion of the constitutional right to sue someone who illegally injures you and collect damages."

      Um, that is because the Constitution does not enumerate the rights of people vis a vis one another. The constitution says what power the government does and does not have over us individuals. The most that the constitution has on this is giving power to the government to setup laws and establish courts to mediate conflicts between people.

      1. "The most that the constitution has on this is giving power to the government to setup laws and establish courts to mediate conflicts between people."

        Yes, but supposing Congress doesn't fulfill this responsibility, and leaves gaps in the court system by which certain wrongdoers cannot be sued.

        Sure, Congress could do that.

        But what if Congress takes the next step and says, "you can't sue the wrongdoer in *our* (federal) courts, and you can't sue in state courts either!"

        Would such a Congressional statute be constitutional? Hypothetically speaking?

    2. So I get that functionally, it's the FYTW Clause at work here, but... while I can at least vaguely comprehend the reasoning by which a federal law enforcement officer would not be subject to state legal remedies when acting in capacity as a federal LEO, I fail to comprehend how this amounts to a permanent get out of jail free card when they are *off duty*.

      "We're not charging him with attempted murder as a federal LEO, we're charging him as a resident of the state of Texas" seems like it should work. Except FYTW, of course.

      1. This.

        Qualifies immunity as a concept was designed to protect government employees who are undertaking their official duties from personal liability.. Even to the point of giving them some leeway to make mistakes.

        That is not a terrible notion, on its face (well, except for being wholly an invention of the courts and having no basis in US law). But as expanded by the courts, it is a horror show. Stealing stuff while you are searching a home is not even arguably ambiguous as to whether it is within your duties. Neither is beating up or threatening your ex's new boyfriend.

        The grey area should be centered around things that are within their mandate... Sort of. Things that are in the arena of attempting to perform duties, but skewing up. Getting to rough with a resisting prisoner would come in that grey area.... But getting hammered and whipping out your gun when off duty? Not a chance.

      2. How this sort of protection/license does not legally equate to - in fact if not name - a title of nobility escapes me.

    3. But that would violate federal supremacy! Only federal courts, not state courts, can hear claims against federal agents.

      No, only federal courts, not state courts, can hear claims against federal agents for actions taken within the scope of their authority. By the same token, Bivens actions only apply to lawsuits against federal agents for actions taken within the scope of their authority.

      There is no federal-law obstacle to suing federal agents for state-law torts committed outside the scope of their authority. Byrd's mistake was suing in a Bivens action, which assumes that Lamb was acting within the scope of his authority (as he might have been when he had Byrd arrested), rather than for the state-law torts he committed as a private citizen.

  9. The 2,494th reason to resume dueling.

  10. He gets immunity because he misappropriated government property to further a crime?

    Seriously?

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  12. Just typing hypothetically here, but what if someone went to a sparsely populated state, found a ghost town and purchased property there. Now being that the town now has a population, certain municipal functions must be provided. So they appoint themselves as a police officer and obtain the minimal qualifications to be considered law enforcement. (To keep things legal, not to be sarcastic.) Now since law enforcement has such broad immunity, why not just set up shop and start blatantly robbing people? It certainly doesn't seem it could be any worse than what is happening here. Perhaps someone with a altruistic bent could demonstrate to judges in a personal manner how ridiculous some of their rulings seem to ordinary people. How long do you think it would take for "This exact scenario has never factually been ruled upon before so there is no way to hold this officer legally liable." to become "A reasonable person would understand that these actions are unconstitutional."?

    1. I think quite a number of small towns operate under a similar theory.

    2. Towns are vassals of the state and must get state permission to incorporate or form a township or establish a municipality.

      Your first step fails there.

      1. So your criticism is that I did not go far enough into the minutia of the necessary steps. Had I included that, I can only conclude that you would have brought up "But you didn't get it notarized, you used the wrong color ink to sign the papers, etc."

    3. Ha, you'd need to make sure that state politicians get their cut of the take.

  13. "Redress for a federal officer's unconstitutional acts is either extremely limited or wholly nonexistent

    It seems to me we're not talking about an unconstitutional act carried out in the line of duty, but a criminal act carried out in private life.

    1. Exactly. Byrd's mistake was not suing for state-law torts.

  14. It was "precedentially inescapable," he said, his hands tied by past decisions.

    Maybe start ruling for the plaintiffs and let the higher court review? Do they lose money if they later get overturned?

  15. The problem is that Byrd sued Lamb in a federal Bivens action, alleging a violation of his rights under the constitution or laws of the United States, instead of in an ordinary suit under common law or state statutory law for assault. If you sue under Bivens, you have to live with all the judicial gloss--including qualified immunity--that comes along with the Bivens doctrine.

    (If it is objected that the doctrine of qualified immunity was created out of whole cloth by judges, it should be pointed out that the Biven cause of action itself was also created out of whole cloth by judges, who theorized that "if state actors can be sued as individuals under the Civil Rights Act of 1871 (42 U.S.C. § 1983) for their constitutional violations, it isn't fair that federal actors can't also be sued as individuals. The judges overlooked that the Congress that enacted the 1871 statute would have been astonished by a suggestion that they create a similar cause of action against federal agents; the feds, they would have replied, were (among other things) busy breaking the First Klan, and it would be perverse to allow the likes of suspected Klansmen to hobble the feds in their work by subjecting them to federal lawsuits.)

    But even if you accept the Bivens doctrine generally, it shouldn't apply here to Lamb's threats to put a bullet through Byrd's skull or his attempt to smash Byrd's window. As the article states, "He was acting as a private citizen when he made those threats." Bivens (like section 1983) only applies to defendants who are acting under color of law. There might be Bivens liability for having Byrd arrested (since he used his status as a DEA agent to persuade the local cops to arrest Byrd without cause), but the policy reasons that led the courts to create the Bivens doctrine for acts committed under color of law simply don't apply when a federal agents commits lawless actions outside the scope of his federal authority.

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  17. This is astounding.

    The title of the article might well have been, "Courts Rule in Favor of Public Corruption."

  18. This country is so far beyond fucked it’s a wonder all you masochists are still here. Everyone’s a criminal. Except the gang leaders. No different than Mexico. Fucking disgusting.

  19. This shit pisses me off. I'm surprised more victims, like Mr. Byrd, don't take the law into their own hands.

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  21. Nonsense. It's easy to hold federal officers to account.
    “The great masses of men, though theoretically free, are seen to submit supinely to oppression and exploitation of a hundred abhorrent sorts. Have they no means of resistance? Obviously they have. The worst tyrant, even under democratic plutocracy, has but one throat to slit. The moment the majority decided to overthrow him he would be overthrown. But the majority lacks the resolution; it cannot imagine taking the risks.” ~ H. L. Mencken (1926). “Notes on Democracy,” p. 50, Alfred A. Knopf

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  23. US Federal Officers have "Open Season" on US citizens and taxpayers. Call it what it is.

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