The Washington PostDemocracy Dies in Darkness

Opinion Suing federal officers is nearly impossible. Congress can fix that.

The U.S. Capitol building on June 26. (Samuel Corum/AFP/Getty Images)
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If a federal law enforcement officer violates your constitutional rights, what can you do about it? Here’s one thing you shouldn’t count on: suing them. Thanks to the doctrine of qualified immunity, claims against police in court almost always fail. But plaintiffs hoping to hold federal law enforcement accountable face an additional barrier: getting a court to hear their case in the first place.

Congress allows for lawsuits against state and local officers who violate someone’s constitutional rights, per a law passed after the Civil War. But the legislative branch never got around to creating the same explicit authorization for lawsuits against federal officials. For about the past 50 years, those hoping to sue federal officers have relied on a narrow Supreme Court ruling, in which it created a path for those looking to seek damages from federal officers who violate their Fourth Amendment right against unreasonable search and seizure. The 1971 decision, Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, created a class of cases known as Bivens claims. However, in the decades since, the court has gradually whittled down Bivens in case after case, blocking numerous suits against federal officers from proceeding at all.

On June 8, the court effectively killed the Bivens remedy, siding 6 to 3 with a Border Patrol agent accused of using excessive force. In her dissenting opinion, Justice Sonia Sotomayor called the facts of Egbert v. Boule “materially indistinguishable from those in Bivens”: Both involved a U.S. citizen on his own property allegedly roughed up by a federal officer or officers without a warrant. Still, the court voted against allowing innkeeper Robert Boule to sue Border Patrol agent Erik Egbert.

The consequences of rendering Bivens almost entirely moot are severe. In the words of Justice Sotomayor: “Absent intervention by Congress, CBP agents are now absolutely immunized from liability,” even as “certain CBP agents exercise broad authority to make warrantless arrests and search vehicles up to 100 miles away from the border.” In his majority opinion, Justice Clarence Thomas pointed to internal investigations in federal agencies as sufficient for dealing with citizen grievances. The dubious presumption is that administrative self-oversight is equivalent to an independent, impartial trial in a court of law.

Justice Thomas also repeatedly deferred responsibility to Congress, writing “the Judiciary is at least arguably less equipped than Congress” to allow lawsuits to proceed. Federal officers interact with numerous people on a daily basis, with the vast majority doing their duty to protect public safely properly and judiciously. But in those instances where an officer goes too far, there should be a recourse for ordinary citizens to sue. The justices have refused to open the courts to those harmed by federal officers, so Congress must step up.