You Should Be Able To Sue Federal Officers Who Violate the Constitution

A terrible double standard insulates federal employees for gross violations of individual rights

You have probably heard something about qualified immunity, the doctrine that sometimes allows state and local employees (and specifically police officers) avoid liability for violating a citizen’s constitutional rights. There is a major bipartisan push in Congress to eliminate or limit the doctrine, which requires a plaintiff show that a right was “clearly established” and gives police officers a right to appeal their cases before trial, delaying trial and payment of damages for years.

But at least, in the end, you can sue a state or local official, and if the right is clearly established, you can recover. Civil rights lawyers throughout the country have built their practices on so-called Section 1983 suits, based on the federal statute (42 USC Section 1983) which permits such suits. But what happens if the FBI violates your rights? What happens if the DEA ignores the Constitution? What happens when Customs and Immigration agents flout the law?

Increasingly, they can’t be sued at all. More than 50 years ago, the Supreme Court recognized this disparity and held that the Constitution itself required such suits. In the landmark case of Bivens v. Six Unnamed Agents, the predecessor agency to the DEA executed a warrantless narcotics search in the home of and arrest of a man, Webster Bivens, who was completely innocent. He sued. Had the raid been conducted by local police, his case for damages under Section 1983 would have been extremely strong. Had he been guilty, he would have had a remedy too- whatever drugs were found would have been excluded from his criminal case. But since he was innocent, as the second Justice Harlan (a conservative Justice) said, “it’s damages or nothing”. And before the Supreme Court decided Bivens, it was nothing. The Court changed that and ruled that the Constitution required a damages remedy for violations of a constitutional right.

Bivens suits were always subject to the same limitations as Section 1983 suits; government officials could claim qualified immunity, and in fact, Harlow v. Fitzgerald, a major qualified immunity case, arose out of a Bivens action. But conservatives, who didn’t like Section 1983 (or the case that held that it provided a general remedy for violations of constitutional rights, Monroe v. Pape) very much to begin with, HATED Bivens. Bivens was a prime example of a case that created an “implied right of action”. Conservatives tend to hate plaintiffs lawyers and hate big damages awards, and one of the ways they manifest that hatred is in the belief that a federal cause of action can only be created by Congress. It can’t be “implied” out of a statute or the Constitution.

(To be fair to conservatives, this is not a totally implausible belief about the law. The federal courts have, since the 1930’s, rejected the notion that there is a general federal common law that allows federal courts to create causes of action for damages the way state courts can. This doctrine, called the Erie doctrine after the case that set it out, was supported by liberals as well as conservatives. Conservatives want to apply Erie broadly to snuff out the power of federal courts to create causes of action at all, whereas liberals accept that there is no general common law rulemaking power but believe that federal courts can create rules to protect constitutional rights, like the famous Miranda warnings, and Bivens. Neither position is completely unreasonable as a matter of law; however, the conservative position is terrible policy, as it harms innocent people who have no remedy other than damages.)

Conservatives have spent the last 50 years cutting back on Bivens. First, they invented the “special factors counseling hesitation doctrine”, that held that even where a constitutional right is clear and is violated, there might be some special issue that comes up with respect to a federal agent. For instance, courts might not want people to be able to sue a CIA agent, or a servicemember in the military, or for a constitutional violation that occurs in a war zone. Then, they simply held that the Supreme Court would stop recognizing Bivens claims in new “contexts”, meaning that unless you faced an illegal search in the same circumstances as Bivens, or one of two other contexts where the Supreme Court had upheld a Bivens claim, you can’t sue for a constitutional violations. This did not quite kill Bivens, but it means that the vast majority of violations of the Constitution by federal officials cannot give rise to a lawsuit. And there may actually now be five votes on the Supreme Court to kill Bivens entirely.

You might ask, why doesn’t Congress just pass a statute like Section 1983? The problem there is that Congress is extremely responsive to the people who work for the federal government, and extremely contemptuous of the types of people who sue it (mostly arrestees who are presumed to be criminals). Accordingly, Congress has passed laws that allow certain suits against the federal government, but they are riddled with exceptions, prohibit jury trials, and allow the federal government to “substitute” itself, and assert all of the government’s defenses, in any suit against a federal officer or employee. So, again, for most plaintiffs, it’s the Supreme Court creating a damages remedy, or nothing.

As federal power continues to expand, this becomes more and more of an issue. Notice, for instance, how many major crimes are now investigated by the FBI, even when they simply consist of murders and assaults that would traditionally be the province of state laws. This has the effect of shifting the investigation from an agency whose employees can be sued for violation of the Constitution to one whose employees cannot. This, in turn, has to increase the likelihood of constitutional violations.

Or look how many people are tried in federal court and sent to federal prison for such things as drug and sex offenses. Those prisons’ employees are exempt from Section 1983 liability, and with Bivens turning into a nullity, again, it becomes more likely that the Constitution will be violated.

We need to restore Bivens. Either the Supreme Court needs to reaffirm Bivens and reclaim the power of the federal courts to protect constitutional rights, or Congress needs to do the right thing and simply extend the rules of Section 1983 to federal agents, perhaps with a narrow “special factors counseling hesitation” doctrine protecting a few very sensitive federal tasks. If we don’t, don’t be surprised to see more and more violations of the Constitution and less and less accountability.