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Federal Officers Can Violate Civil Rights With Near Impunity - Supreme Court’s Refusal to Consider New Bivens Contexts Provides Protection to Those Who Abuse Their Authority

by Casey J. Bastian

The civil rights we all inherently possess, and that are ostensibly still protected by the U.S. Constitution, would be rendered meaningless if no redress were available for having been violated. The ability to vindicate these rights in a court of law should itself be a fundamental right in our legal system. The words of British Jurist William Blackstone give clarity to this idea. “In vain would rights be declared, in vain directed to be observed, if there were no method of recovering and asserting those rights, when wrongfully withheld or invaded,” noted Blackstone. Yet, in modern America, federal agents are able to commit flagrant violations of a citizen’s rights, seemingly with impunity.

Anyone today who has ever tried to sue for damages incurred as a result of lawless conduct of a federal agent is likely familiar with the Supreme Court case Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), in which the Court ruled that a violation of a person’s Fourth Amendment rights can give rise to a cause of action for damages in connection with unlawful searches and seizures.

Judge Don Willett sits on the bench of the U.S. Court of Appeals for the Fifth Circuit and, in a recent case, observed in a concurring opinion that “redress for a federal officer’s unconstitutional acts is either extremely limited or wholly nonexistent, allowing federal officers to operate in something resembling a Constitution-free zone.” Willett was writing about the dismissal of Byrd v. Lamb, 990 F.3d 879 (5th Cir. 2021), on grounds of precedent. Here’s what happened.

Ray Lamb is an agent for the Department of Homeland Security (“DHS”). In 2019, Lamb was involved in an altercation in a restaurant parking lot in Conroe, Texas. During the incident, Lamb threatened Kevin Byrd with a firearm and then attempted to smash out the window of Byrd’s car. When police arrived, Lamb displayed his federal badge and caused Byrd to be handcuffed and detained for several hours. After police reviewed the restaurant’s security footage, Byrd was released.

Lamb was arrested for aggravated assault with a deadly weapon and misdemeanor criminal mischief, but the civil suit Byrd filed in federal court was dismissed in March 2021. Willett lamented that “[m]iddle-management circuit judges must salute smartly and follow precedent. And today’s result is precedentially inescapable: Private citizens who are brutalized—even killed—by rogue federal officers can find little solace” in the current U.S. Supreme Court case law. Willett added that “if you wear a federal badge, you can inflict excessive force on someone with little fear of liability.”

This is not the way it was intended to be. A majority of the Founding Fathers appear to have been deeply committed to the idea that the judiciary should, and would, hold federal officers civilly liable for any malfeasance. Judicial precedent as far back as 1789 clearly indicated that a federal actor shall be held liable for any acts not done under the color of law. Meaning that if a federal officer did not have the legal authority to support their conduct, they are to be held accountable for redress of the violations of a person’s rights.

Similar rulings continued throughout the ensuing decades. As University of Texas law professor Stephen Vladeck noted in the Cato Supreme Court Review: 2019-2020, it is that, “At the Founding, and for much of American history, there was no question as to whether federal courts had the power to provide judge-made damages remedies against individual federal officers. Not only did federal courts routinely provide such relief, but the Supreme Court repeatedly blessed the practice.” Which makes the Bivens case consistent with these noble traditions.

In 1967, Webster Bivens sued agents who entered his apartment without a warrant, ransacked it, placed him in handcuffs, and strip-searched him in the federal courthouse. Bivens sued for violations of his Fourth Amendment rights, and he won. Justice William Brennan observed in the case that, “Historically, damages have been regarded as the ordinary remedy for an invasion of personal interests in liberty.” Thus, the Court created a special type of implied cause of action allowing private citizens to sue federal agents for constitutional violations when there’s no statute authorizing suit.

In a 1979 case, Davis v. Passman, 442 U.S. 228 (1979), the Supreme Court expanded Bivens to include the Fifth Amendment’s Due Process Clause for a case of workplace sex discrimination. And, one year later, in Carlson v. Green, 446 U.S. 14 (1980), the Court permitted Bivens to extend to the Eighth Amendment due to a denial of medical treatment resulting in death.

The Court’s willingness to continue to expand the scope of Bivens seemed to end in 2017. In Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), several detainees held in the wake of the 9/11 attacks sued for allegedly abusive treatment. The Court dismissed the lawsuit and made it clear any future Bivens plaintiffs would face a very high bar in suing to hold a federal agent accountable in any new Bivens context.

A “new context” means that if “the case is different in any meaningful way from previous Bivens cases decided by the Court,” the new case would likely be dismissed, wrote Justice Anthony Kennedy. Justice Kennedy seemed to imply that findings of “new context” would be detrimental to law enforcement because the “risk of personal damages liability is more likely to cause an officer to second-guess difficult but necessary decisions concerning national security.”

Was DHS agent Ray Lamb making decisions concerning national security when he assaulted Byrd in a restaurant parking lot? It doesn’t seem that a reasonable person would assert that he was, nor does it seem reasonable to assert that national security should always trump civil liberties.

To have a Supreme Court justice indicate otherwise demonstrates that Bivens is now truly a “disfavored’ judicial activity.” Even though a majority of the Supreme Court views Bivens as judicial activism, it is not such a radical departure from much earlier precedent as that label would seem to imply. Congress is not innocent of eroding the ability to seek redress of violations either.

Traditionally, a person could sue a federal officer in state court for the commission of state common law offenses. However, Congress created the Westfall Act and removed that option. Under the Federal Employees Liability Reform and Tort Compensation Act of 1988, or Westfall Act as it is known, any “civil action or proceeding for money damages” against a federal employee conducted outside a federal court “is precluded.” As it stands, both the state and federal courthouse doors seem to be closing on those who wish to hold rogue federal agents accountable for their misconduct. 


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