The Simple Way Congress Can Stop Federal Officials from Abusing Protesters

President Trump's saber-rattling in recent days poses the very real prospect of a vastly increased federal police presence in American cities. Abuses by federal officials will surely follow, and have already occurred—including against peaceful protesters outside the White House in order to clear the way for a presidential photo op.

Yet injured protesters may lack a civil remedy for violations of their constitutional rights. Congress has never formally authorized civil suits against federal officers as it has against state and local officers. Older decisions allowed such suits to proceed, but over the past forty years the Supreme Court has grown increasingly hostile to this form of litigation. As Congress considers various ways to combat abuse by local law enforcement after a series of killings of black people by police, its members should add a simple fix to cover federal officers as well. All Congress needs to do is provide a statutory right to pursue constitutional tort claims comparable to those brought today as Bivens actions.

The Bivens action takes its name from the 1971 decision in Bivens v. Six Unknown Named Members of the Federal Bureau of Narcotics, which arose from an encounter between federal officers and Webster Bivens, an African American man in New York City. Bivens sued the agents for $15,000 after they entered his home without a warrant, strip searched and arrested him on a drug charge that was never prosecuted. Even though Bivens had no federal statutory right to sue the federal agents, the court ruled 6-3 that the United States Constitution itself (in this case the Fourth Amendment) provided Bivens with a right to sue for damages. Bivens ultimately settled his case against the officers for just $500, but his lawsuit had significant reverberations. Later cases expanded the right of individuals to seek damages as a result of cruel treatment in prisons and discrimination in federal workplaces. Bivens litigation thus provides a judge-made right to sue federal officers, comparable in some respects to the laws Congress adopted during Reconstruction to redress constitutional violations by state and local government officials, and that are regularly used today when suing law enforcement for constitutional violations.

Over the past few decades, however, a narrow conservative majority on the Supreme Court has consistently refused to make the Bivens action available to victims of federal lawlessness. Khalid El-Masri and Marer Arar, victims of federal government rendition and torture, were denied a right to sue under Bivens; the men rounded up in the wake of September 11, harshly detained, but never prosecuted for any terrorist activity were similarly turned away. Earlier this year, the family of Sergio Hernandez Guereca, a teenaged boy killed by a federal border patrol officer while standing just across the border in Mexico, was denied any relief under Bivens. Some Justices have called for the Bivens doctrine to be eliminated altogether.

In denying victims of torture and cross-border shootings a right to sue, the Court has offered a range of explanations. First, the Court has expressed concern that federal officers, faced with the threat of personal liability, will be overly cautious when performing their jobs. But this justification for a limitation on Bivens makes little sense. The Court has already expanded the powerful judge-made qualified immunity doctrine for both federal and state and local officers on the same rationale—the need to safeguard government officials from the risk of damages liability. When federal officers are sued, then, the supposed threat of personal liability has been used to support two different shields: an argument that qualified immunity protects all but the most clearly unconstitutional actions, and now an argument against recognizing any right to sue.

Although the Supreme Court has used the threat of personal liability to justify both of these protections for federal officers, our research into the incidence of liability shows that, in reality, federal officers face no such threat: When we examined 171 successful Bivens claims against federal officials from the Bureau of Prisons over a 10-year period, we found that officers paid nothing toward the settlements and judgments in over 95 percent of the cases. (The money was paid from the Judgment Fund of the U.S. Treasury.)

The Court’s other justifications for limiting Bivens are similarly unpersuasive. The Court has claimed that a Bivens remedy is unnecessary for people seeking to change federal policy because they can bring those challenges in other ways, such as by seeking injunctions against policymakers or filing habeas corpus petitions to secure release from custody. But these types of relief will not suffice for many whose rights have been violated by federal actors. The victims of torture and cross-border shootings cannot petition for injunctions or seek habeas relief; for them, the suit for damages provides the only way to hold federal officers accountable.

The Court’s final reason for curtailing the right to sue federal officials addresses itself to Congress. In Ziglar v. Abbasi, the 2017 detention policy case that arose from the post-9/11 roundup of Muslim men in New York City, the Court noted that the Bivens action was a right to sue created as part of case-by-case decision-making (common law) and not the product of legislation. Judges should be wary before fashioning rights to sue, the Court said, and should defer to the legislative branch out of “respect” for the role of Congress in balancing the rights of individuals and the needs of federal officials. Ironically, then, the Court has urged Congress to take the lead in allowing suits for redress at the same time the Court itself has fashioned judge-made rules to broaden qualified immunity and limit official accountability.

We do not share the Court’s conception of the judicial role, and believe the courts have a distinctive role to play in assuring constitutional redress. But so long as the Supreme Court persists in taking this restrictive view of Bivens litigation, Congress can and should provide the uniform right to redress that, long needed, seems even more urgent today. Congress has had opportunities before but failed to act. Between 1973 and 1985, 21 bills were introduced that would have established a statutory right to recover damages for the constitutional torts of federal officers. Today, demands for change have persuaded many in Congress to support reform of the criminal justice system. As the White House contemplates ever more militarized federal responses to peaceful protests, Congress should provide the statutory framework that would secure the Bivens action and ensure constitutional accountability at the federal level.