Police reforms should include federal cops too

Of the many ideas for police reform to gain traction following the murders of George Floyd and Breonna Taylor by law enforcement, ending the judge-made legal doctrine of qualified immunity stands out for its tri-partisan and popular appeal. 

More than 1,400 current and former pro athletes and coaches, including NFL stars Odell Beckham Jr. and Tom Brady, posted an open letter to Congress in support of the idea. Sen. Mike Braun (R-Ind.) declared his interest in introducing legislation. And it is a centerpiece of the Justice in Policing Act, which is quickly making its way through the House and proposes eliminating qualified immunity for state and local law enforcement.

But few have noticed that the bill leaves in place an FBI-SWAT-team-sized loophole that shields federal officers from judicial accountability. Now is the moment to hold all law enforcement officers accountable for violating the United States Constitution.  

The current version of the Justice in Policing Act would largely end qualified immunity for state and local law enforcement by amending Section 1983. Enacted as part of the Civil Rights Act of 1871 in the aftermath of the Civil War, Section 1983 ensures that state and local officers can not violate individuals’ federal constitutional rights with impunity — which law enforcement in the recently vanquished former confederacy stood ready and eager to do. It allows individuals to sue state and local officials to recover damages for constitutional violations, and has been the primary tool that victims of police brutality use to secure redress for constitutional injuries ever since. Although in practice qualified immunity has made it nearly impossible to hold state officers accountable for the deprivation of rights.

At the federal level, the situation is even worse, because there is no corresponding statutory cause of action for those who suffer constitutional injury at the hands of federal officers. In 1971, the Supreme Court’s decision in Bivens v. Six Unknown Federal Narcotics Agents recognized limited circumstances in which the Constitution itself authorizes victims to recover damages in cases involving federal officers, potentially putting federal abuses to the same test as the one applied to state and local wrongs.

But the Court has consistently and significantly curtailed the availability of these so-called “Bivens” claims in recent years. In its February decision in Hernández v. Mesa, the Court all but shut them down, “express[ing] doubt about [its] authority to recognize causes of action not expressly created by Congress.” As Justice Clarence Thomas declared in his concurring opinion, “the time has come to consider discarding the Bivens doctrine altogether.” 

The fact that section 1983 cannot be used for federal officer misconduct, coupled with a Court increasingly reticent to sustain one absent a statute that creates it, means that victims of constitutional violations by federal officers too often have limited recourse. ICE officers who conduct illegal searches and seizures in violation of the Fourth Amendment, federal law enforcement officers who give falsified evidence in violation of the Sixth Amendment, TSA officers who violate individuals’ First Amendment rights and prison officials who subject inmates to punitive strip searches in violation of the Fourth and Fifth Amendments have all been found to be immune from judicial accountability. It is not unreasonable to expect that the Supreme Court will soon eliminate the Bivens doctrine altogether, leaving victims of unlawful actions by federal officers with no recourse.

For those who suffer constitutional violations by those sworn to protect them, whether the offending officer is a county sheriff or DEA agent is irrelevant. The distinction shouldn’t matter to the law either. And yet it does. 

Take the protesters who gathered in Lafayette Square on June 1 to protest systemic racism and the police killings of George Floyd and Breonna Taylor. As shocking footage from the Washington Post shows, federal law enforcement officers violently and without provocation dispersed the otherwise peaceful crowd. Such victims of police violence deserve to have a legal remedy. Soon, because of judicial trends and inaction from Congress, they might not. 

Congress must step in to fill this lawless void by codifying Bivens claims. Closing this loophole would not only provide victims with an avenue for relief, but also help to deter future abuses. The Supreme Court has recognized the importance of judicial accountability in preventing federal law enforcement misconduct, not just remedying it, observing that the function of a Bivens suit is in part “to deter individual federal officers . . . from committing constitutional violations.” Without a federal Bivens statute – without a mechanism for judicial accountability – Congress provides federal law enforcement with little incentive to abide by its laws.

The United States needs a modernized Civil Rights Act of 1871 for the year 2020. Just as Congress did in creating section 1983 to authorize suits against state and local officers who terrorized newly freed slaves and those who might come to their aid, it should guarantee a private right of action for recovery of damages for constitutional violations by federal officers, retroactively and for future abuses. Any efforts at police reform that stop short of applying the law equally, no matter the badge, will fall short.

Justin Vail is a policy advocate at Protect Democracy. Roy L. Austin, Jr. is a partner at Harris, Wiltshire & Grannis, LLP and a former federal prosecutor in Washington DC and Deputy Assistant Attorney General in the Civil Rights Division.