The Washington PostDemocracy Dies in Darkness

Opinion It’s nearly impossible to hold federal officers accountable. The Supreme Court can change that.

The Supreme Court building is seen on Nov. 10, 2020. (Hannah Mckay/Reuters)
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Anya Bidwell, Patrick Jaicomo and Alexa Gervasi are lawyers with the Institute for Justice. They represent José Oliva before the U.S. Supreme Court.

In 2016, three Veterans Affairs officers choked and assaulted José Oliva, a 70-year-old Vietnam veteran, in an unprovoked attack at an El Paso VA hospital. The U.S. Court of Appeals for the 5th Circuit threw out Oliva’s case on the grounds that the officers who assaulted him worked for the federal government. Therefore, the appellate judges held, the courthouse doors were firmly shut to him.

In 2019, a Department of Homeland Security officer allegedly attempted to smash the car window of Montgomery County, Tex., resident Kevin Byrd in a parking lot, telling him while wielding a gun that he would “put a bullet through his f---ing skull” and “blow his head off.” The 5th Circuit threw out this case as well, again because the officer was employed by the federal government.

District courts in both cases denied the officers qualified immunity. In other words, had these police been employed by a state or local government, cases against them would have been allowed to proceed. But because of the federal status of these officers, the 5th Circuit says they cannot be sued, no matter how egregious the behavior.

That’s the reality in our country today. Thanks to qualified immunity, it’s hard enough to hold state and local officers to account. But most lawsuits against federal officers meet with immunity that is not just qualified, but absolute.

This issue has largely flown under the radar in the national discussion on police accountability. Many judges have assumed that because state and local officers can be sued under a civil rights statute called Section 1983 and federal officers cannot, there is a higher threshold of accountability when the culprit is employed by a state or a municipality. That’s profoundly wrong, and it strikes at the heart of our constitutional system. After all, lawsuits against overzealous federal officers have been approved by U.S. courts since the nation’s founding.

Last week, one appellate judge — writing a concurrence in the case involving the DHS officer — had enough. In a clarion call to accountability, Judge Don Willett of the 5th Circuit pleaded with Congress and the Supreme Court to take a closer look at the “Constitution-free zone” that courts have created in which “individuals whose constitutional rights are violated at the hands of federal officers are essentially remedy-less.” Willett called the current dual-track accountability regime, which arbitrarily distinguishes between state and federal employees, “innately unjust,” arguing that “wholesale immunity” for federal officers induces “impunity, giving the federal government a pass to commit one-off constitutional violations.”

Willett is going against the grain, to be sure. Starting about 40 years ago, conservative jurists began taking an unforgiving stance on civil actions against federal officials. It became gospel that because constitutional suits against state officers have been explicitly authorized by a statute and federal suits have not, federal officers simply cannot be sued when they violate the Constitution.

But this myopic view completely ignores the rich history of federal constitutional accountability that has existed since the dawn of the republic. For centuries, you could take federal officials to court and demand damages for violations of your individual rights. After all, as Chief Justice John Marshall once said when quoting William Blackstone, where there is a legal right, there is also a legal remedy. This trend continued well into the 20th century, until the Supreme Court began blocking claims against individual officers by erecting barriers such as qualified immunity and creating additional loopholes to accountability, particularly in suits against employees of the federal government.

And that’s how we end up in the world in which Oliva, who himself had been employed as a law enforcement officer for 25 years, is almost choked to death by VA police, and Byrd is threatened with a gun by a DHS officer in a parking lot.

Willett is no stranger to the intricacies associated with suing federal officials. He, too, ruled in favor of dismissing cases brought against federal police. As he says, such outcomes are “precedentially inescapable: Private citizens who are brutalized — even killed — by rogue federal officers can find little solace” in the current accountability framework. So while he can see through the injustices and lend his voice “to those lamenting today’s rights-without-remedies regime,” as a circuit-court judge he must follow the precedent set by his court and the Supreme Court.

The Supreme Court will decide this term whether to review the 5th Circuit’s decision to deny Oliva’s case. By taking on this case and holding that the 5th Circuit was wrong, the Supreme Court would go a long way toward realigning this country’s individual-rights jurisprudence with its original design and ending the pernicious two-track system of accountability that Willett so eloquently bemoaned.

Read more:

The Post’s View: Police reform is not enough. We need to rethink public safety.

Ruth Marcus: The Supreme Court invented qualified immunity. Now, a judge’s blistering opinion shows why it must go.

James A. Wynn Jr.: As a judge, I have to follow the Supreme Court. It should fix this mistake.

Radley Balko: State-federal task forces are out of control

Nick Sibilla: Virginia must tackle qualified immunity

George F. Will: An improbable journalist’s crusade against police impunity

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