New Bill Would Revive the Right To Sue Federal Cops for Constitutional Violations

The Supreme Court created, then gutted, a right to sue federal agents for civil rights violations.

Democrats in Congress have reintroduced a bill that would revive the ability to sue federal law enforcement officers for constitutional violations like excessive force, following a series of Supreme Court decisions that have made it practically impossible to do so.

Sen. Sheldon Whitehouse (D–R.I.) and Reps. Hank Johnson (D–Ga.) and Jamie Raskin (D–Md.) reintroduced the Bivens Act in the Senate and House, respectively, this week. The legislation would amend the Civil Rights Act of 1871—a federal statute that allows people to sue the government for civil rights violations—to include federal officials acting under the color of law, as well as state and local officials.

"Public officials at all levels of government, including law enforcement, should have a clear, fair standard of accountability when they break the law," Whitehouse said in a press release. "Our Bivens Act would end the confusing judicial precedent that for too long has prevented victims from holding federal officials accountable and securing compensation for constitutional violations."

In 1971, the Supreme Court ruled in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics that federal agents may be sued when they violate someone's rights. But subsequent Supreme Court rulings over the years have steadily narrowed the scope of so-called Bivens claims to the point where it's a dead letter.

In the most recent case, Egbert v. Boule, the Supreme Court ruled in 2022 that a bed-and-breakfast owner could not sue a Border Patrol agent who had allegedly assaulted him and then retaliated after he complained. Reason's Damon Root summarized the case: 

At issue were the actions of a border patrol agent who sought to question one of the guests at a Washington state bed-and-breakfast about the guest's immigration status. When owner Robert Boule told the agent, Erik Egbert, to leave his property, Egbert allegedly assaulted Boule. Then, when Boule complained about the alleged assault to the agent's superiors, Egbert allegedly retaliated by asking the IRS to investigate Boule, who was audited.

The Court ruled 6–3 that Boule could not bring a claim against Egbert for excessive force or First Amendment retaliation. 

That same term, the Court declined to hear petitions involving cases where a St. Paul police officer invented a fake sex-trafficking ring and jailed a teenage girl for two years on trumped-up charges and where a Department of Homeland Security agent allegedly tried to kill a man because of an argument involving his son.

As Reason's Billy Binion wrote at the time, "A federal badge will now serve as an impenetrable shield against civil liability for violating the same laws agents are charged with upholding."

That's not just the opinion of some whacky libertarians either. Federal Judge Don Willett complained in a 2021 opinion that the Supreme Court has gutted Bivens to the extent that "if you wear a federal badge, you can inflict excessive force on someone with little fear of liability."

The Bivens Act is supported by numerous civil rights and watchdog groups, including the American Civil Liberties Union, the Drug Policy Alliance, and the Project on Government Oversight.

Comments

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Qualified immunity is actually a sham, and illegal, according to Congress.

Eugene Volokh had a fascinating post on this a while back.

To make a long story short, until the 1870s, all federal public laws that had ever been passed were just recorded in chronological order, in a series of books called the Statutes at Large. If you wanted to figure out exactly what the law said about something, you would have to find all of the relevant statutes on the topic that had been passed over time, and then piece them together to see what had repealed or amended what and what was still in force. Congress decided to make the law clearer by supporting an official codification of federal law, where they would hire an expert to go through all of the statutes, figure out what had amended or repealed what, and then put them in to one more-easily-understood book organized by topic rather than simply in chronological-chain-novel fashion. These were the Revised Statutes of 1874, which were passed by Congress and repealed all previous public laws, so as to be the new Official Statutory Law of the United States.

The problem is that it is very very hard to actually go through all of the statutes, figure out what had amended or repealed what, and then put them in to one more-easily-understood book organized by topic rather than simply in chronological-chain-novel fashion. On one hand, Congress had instructed the revisers not to make substantive changes to the law — they were just supposed to take the existing law and put it all together. On the other hand, the revisers did sometimes make substantive changes. Sometimes this was unavoidable, because the relationship between existing laws was ambiguous. Sometimes it was just a mistake.

And, if Reason will let me include a second link, here’s the second half of the story.

The original text of Section 1983 proclaimed, in unequivocal terms, that state officials who had violated someone’s rights would be liable under federal law, “any such law, statute, ordinance, regulation, custom, or usage of the State to the contrary notwithstanding.” In other words, this Notwithstanding Clause took all state-law defenses, including qualified immunity, completely off the table. But just three years after Section 1983 was passed, the Notwithstanding Clause was clipped for space, as compilers organized federal law into the Revised Statutes of 1874.

Qualified immunity under Section 1983 relies on the assumption that Congress meant to preserve state-law defenses because it didn’t explicitly disclaim them. But as we now know, Congress explicitly disclaimed state-law defenses with the Notwithstanding Clause. Though Congress soon after omitted the clause when it reworded Section 1983, evidence shows Congress believed the rewording left the state-law disclaimer intact. That belief makes perfect sense because Congress enacted Section 1983 for the very purpose of superseding state law.

But here is why the Notwithstanding Clause is relevant today. Changes made in the 1874 Revised Statutes are presumed to be non-substantive unless Congress “clearly expressed” its intent to change the law. We don’t have that here. On the contrary, history shows the drafters most likely omitted the clause simply for concision — and that Congress was aware of the omission yet likewise believed it left Section 1983 unchanged. And unlike the typical situation involving excised language (where courts would read something out of a statute), the issue here is whether the omission warrants reading qualified immunity into Section 1983. Here again, the history of the 1874 revision says it does not.

Before the 1874 Revised Statutes, people had to sort through a mess of scattered congressional acts to try to figure out what the current law was. So Congress enacted the 1874 Revised Statutes, which repealed all those old laws and codified their new versions in one place. For that to happen, seventeen-volumes’ worth of the old laws had to be painstakingly reorganized, condensed, and simplified. At every step of the process — from drafting to codification — Congress made clear over and over that it did not want to change the law. And even after the drafters made some substantive alterations in the initial drafts, Congress hired a lawyer, Thomas Durant, to undo them. Notably though, Congress told Durant to leave in mere changes in phraseology not affecting the meaning of the law.

No one on the House floor ever raised concerns about the revisions to Section 1983; but they were specifically referenced during the debates. In fact, one Representative Lawrence, after underscoring that the goal of the 1874 Revised Statutes was to compile the law as is, cited the revisions to Section 1983 as a “fair specimen” of the final draft and invited his colleagues to “judge [] the accuracy of the translation.” No House member objected, suggesting a shared belief that the revisions, in the Supreme Court’s words, “were not intended to alter the scope” of Section 1983.

[Mayor Vaughn for President]

Thanks for both links.

[Liberty_Belle]

Hmm, politicians trying to do something useful for once. Took them long enough, but still ... credit for effort.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Kinda makes you wonder what their ulterior motive is, doesn't it?

[sarcasmic]

If Democrats support it then it must be opposed. Doesn’t matter what it is.

[VULGAR MADMAN]

Come see the ideas!

[TLoro]

Well I guess those Republicans that have been beaten and killed by federal agents would disagree.

[Rossami]

It won't be enough unless they also very explicitly reject the judge-made concept of qualified immunity.

[SRG2]

QI - as invidious a concept as has ever been invented by judges to protect the police and other government actors.

In a parallel universe, advocates for small government would have campaigned for its abolition. In this one, nope, in general.

[Let's Please NOT Hang Mike Pence!]

In THIS universe, where the Orange Wonder Child... AKA, where the Great Whitish-Orangish Pumpkin Feather-Father rules and drools... "small government" is a pathetic concept! "Let's get small" is SOOOOO last decades, maybe even last century!!!

[Rockstevo]

My question is why...why now and what is the reason they are pushing this forward? To paraphrase Red October "Democrats don't take a dump without a plan"

My follow up is will this only cover law enforcement? What about teachers and school administrators? What about prosecutors? Or are they only going after those who give more support to Republicans?

[Let's Please NOT Hang Mike Pence!]

Do you have any actual proposed solutions? Other than "stop persecuting MY Sacred Tribe"?

"Hang Mike Pence"; is THAT perhaps your proposed solution? Do you have... got... anything that hasn't got any SPAM in shit?