Ending the Constitution-free Zone for Federal Officials

Representative Hank Johnson (D-GA), Representative Jamie Raskin (D-MD), Senator Sheldon Whitehouse (D-RI), and Senator Alex Padilla (D-CA) have introduced the Bivens Act, a new bill that remedies an old and glaring injustice.

If the government violates your rights, you should be able to seek justice in the courts — both as a matter of basic fairness and to deter rights violations in the first place. Unfortunately, this is often impossible, particularly if a federal government official commits the violation.

If a state or local police officer shoots your son or daughter, you can sue them for violating your child’s constitutional rights. This right was established by a law passed during Reconstruction, 42 U.S.C. §1983. Suing will not bring your child back, nor will it bring their killer to justice, but it can deter future violations and provide some compensation. There are a number of unjustified obstacles to such lawsuits, including a doctrine called “qualified immunity” that shields officials from being sued for unlawful killings and other serious violations of the Constitution unless there is a precedent with nearly identical facts. Even so, cases are brought, and families frequently do receive compensation for the most egregious abuses.

But if your child has been killed by a federal official, the courthouse door is often sealed shut. If, for example, the perpetrator is a border patrol agent, you’re unlikely to even get a settlement, because there is no statute equivalent to 42 U.S.C §1983 for rights abuses by federal officials.

Take the cases of two Mexican teenagers shot by border patrol officers in separate cross-border shootings in 2010 and 2012, Sergio Adrián Hernández Güereca and José Antonio Elena Rodriguez. Both of their families sued the border patrol officers responsible, alleging that their sons had been killed with no provocation. Before the families had the opportunity to prove their case at trial, in 2020 the Supreme Court voted 5-4 to throw out both lawsuits, because of the lack of a federal statute creating an explicit right to sue federal employees for serious rights violations.

It was not always this way. In 1971, the Supreme Court ruled on the caseBivens v. Six Unknown Named Agents of Federal Bureau of Narcotics. It found that, despite the lack of a federal statute authorizing lawsuits against federal officials for violating the Constitution, plaintiffs could sue directly under the Constitution. The Bivens court reasoned that there was no other remedy that would effectively protect citizens from government agents violating their rights.

But in the 50 years since, the Supreme Court has chipped away at that ruling. By 2020, in the cross-border shooting case Hernandez v. Mesa, the majority said that if Bivens were decided today, “it is doubtful that we would have reached the same result.” Two justices wrote in favor of overturning the Bivens precedent entirely. Now, a pending lawsuit requests that the Supreme Court take that final step.

The harm of the Supreme Court’s abandonment of Bivens isn’t limited to the U.S.-Mexico border. In 2017, the court threw out a lawsuit by immigrants who were rounded up, subjected to punitive strip searches, and imprisoned in solitary confinement for months at federal detention facilities in Brooklyn in the wake of September 11.

Victims of constitutional violations by federal officials have fared no better in the lower courts. Earlier this year, a federal judge reviewed claims from racial justice protestors who were teargassed and brutally dispersed from Lafayette Square in Washington. The judge threw out protesters’ claims that former President Donald Trump and other federal officials had violated their constitutional rights — even as she allowed their claims against state and local police to proceed.

Courts have also dismissed complaints from

• members of the military who were raped by fellow servicemembers and retaliated against for reporting their assaults to commanders;
• a woman framed for a crime by a St. Paul police officer who had been deputized as a U.S. marshal;
• a Canadian citizen whom the CIA flew from John F. Kennedy International Airport to Syria for months of torture; and
• a 70-year-old Vietnam veteran whom federal officers assaulted on his way to a doctor’s appointment.

In short, in the words of Judge Don Willett of the Fifth Circuit Court of Appeals:

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 ... If you wear a federal badge, you can inflict excessive force on someone with little fear of liability.

There is no justification for holding federal officials to a lower standard than state or local officials. There is no defense for leaving victims of serious constitutional rights violations with no remedy. And there is no doubt that Congress has the authority and duty to fix this — as the Bivens Act does by adding five short words to 42 U.S.C §1983. While this law would not address all of the unjustified obstacles to holding government officials accountable for violating individual rights, it would at least place federal officials on an equal footing with state and local ones.