A short post explaining (1) why it's so hard to hold federal officers and/or the federal government liable for violating our rights; and (2) how a one-sentence statute could (and *SHOULD*) fix it.
Sinclair Lewis (and others) have been quoted in the 1930’s as saying, “When fascism comes to America, it will be wrapped in the flag and carrying a cross.” How in the world can we find ourselves in this situation now? Surely the people cannot be so foolish as to swallow the lies that are being spread by federal workers and elected or appointed officials.1/24/26
Because my parents generation, the one that fought in "the war" as we used to call it, are almost all gone now, and with them the living memory of what happened.
I linked to one of them already. There are three easy ways to do it (they differ in some marginal respects, but any of these would be a great start):
1) Amend the FTCA to include constitutional violations as claims for which the federal government itself can be held liable.
2) Enact a standalone statute that simply creates a cause of action for damages for constitutional violations by federal officers (this is the bill linked above).
3) Amend 42 U.S.C. § 1983 (which already authorizes damages suits for constitutional violations by local or state officers) to also include violations under color of "federal law."
Thanks for the response. Might options 2 and 3 result in an uncollectible judgment against the individual officer (yes, I know that might be a deterrent, but would that provide justice for the injured party), and option 1 leaves you with a bench trial and ...[filling in the blank is left as an exercise for the reader]. I vote for a comprehensive "Civil Rights Protections Against Misconduct by Federal Officers" statute. Which, as you intimate, is not likely anytime soon. Again, thanks for sharing your thoughts, especially on a Saturday afternoon.
Indemnification is a problem under virtually any of these schemes. But the idea is that meaningful liability, regardless of who's paying, will create deterrence.
Who in Congress NOW can at all oppose a bill allowing for damage suits arising from by all accounts a gangland-style execution by agents of the State? To have one's life taken in such a callously murderous fashion is surely SOMEWHERE in our Constitution considered beyond the pale of legality, despite ANY claims to "qualified" or other "immunities". At what point does such evidence as that videotaped on the streets of Minneapolis trump legalistic precedent and quibbling about who or who can't be held accountable by criminal law statutes, when a flagrantly despicable and unjustified act — AGAIN by federal goons — is splashed across American media? I ask you.
The statute is 28 U.S.C. § 2679(b)(2)(A), "[exclusiveness of the FTCA] does not extend or apply to a civil action against an employee of the Government which is brought for a violation of the Constitution of the United States."
Without this exception the FTCA would violate the Seventh Amendment jury right, among others.
I don't think it's quite right to say that the Court has decided that the Westfall Act's constitutional exception preempts state tort law -- see Sotomayor's partial concurrence in Egbert. The Court has managed to all but overlook the statute and it's doubtful that federal courts would have authority to displace state tort remedies for violations of fundamental constitutional rights. This is what the Tenth Amendment was all about, not mention the Supremacy Clause.
I've prepared this argument in my lawsuit against the United States but it's not clear the federal courts are willing to hear it.
Don't forget, any nonvested government immunity against the people violates Amendment I's Petition clause, passed & ratified for that purpose. (There was no need to amend to empower suits against private conduct.)
Considering this, we should not be surprised by the reaction of many to fix the problem by taking the law into their own hands. We are getting closer to the boiling point.
State of Idaho prosecuted FBI agent who shot Randy Weaver’s wife at Ruby Ridge. Removed to federal court. District Judge found agent’s actions were objectively reasonable as matter of law but 9th circuit reversed saying evidentiary hearing required. No absolute immunity. New Idaho prosecutor then decided not to proceed with case. Prosecution of federal agent not impossible.
One of the stunning things is that the DHS agents who were involved in the shooting all left the scene. The same thing happened after the shooting of Renee Good - the agent who shot her left the scene. They claimed the man killed had been carrying a firearm and they must have taken it with them because CBP head Greg Bovino later showed a photo of the weapon that looked like it was laying on a car seat - they removed evidence.
Congress should mandate that any federal agents or officers involved in a shooting must remain on the scene. I understand safety may become a problem, but these guys are bristling with military-style weaponry and there are dozens of them. It is simply barbaric that agents shoot someone to death and then just leave.
Are there any laws in place requiring agents remain in place after such an event?
You refuse to acknowledge that the law is what SCOTUS says it is, and the current court has rejected stare decisis, wiped away precedent, wiped away the past. When T invokes the Insurrection Act cancels the 26 elections and the supports the cancellation, so be it, there is no legal remedy
What this piece really highlights is how accountability becomes almost an afterthought when democratic systems lack mechanisms to surface and aggregate citizen priorities before rights violations escalate into headline-making tragedies. As Steve explains, the legal and historical obstacles to holding federal officers liable are deeply rooted, but the structural gap is even broader: when public expectations and consent aren’t visible early in the policy and enforcement process, decisions — even lethal ones — proceed without meaningful upstream feedback.
That’s not just a legal problem — it’s a democratic design problem. We’ve seen similar patterns with immigration enforcement, nationwide injunctions, and other tools of federal power: the public sees the consequences only after they occur and then holds the system accountable long after escalation. What’s missing is a way for voter priorities to be documented, aggregated, and publicly visible before crises harden, so accountability isn’t merely retrospective. Platforms like One Voice One Vote Count & Deliver (https://countanddeliver.org) are attempts to address that gap — not by advocating specific outcomes, but by making democratic consent legible early enough to inform choices and constrain reckless action.
If democratic institutions are to recover legitimacy, we need more than argument after the fact — we need visible mechanisms that make public will part of the calculus before escalation becomes the default.
I was a volunteer legal (attorney) observer for elections until my state went to mail in ballots. I spent my legal career as a Public Defender. While I have always been willing to put myself in dangerous situations to protect others, I never thought I would seriously consider arming myself. Watching the numerous videos that have already come out today, of a man, Alex Pretti an ICU nurse, who was purportedly an observer using his cell phone, shot in the back then in the chest, I am. Some of my family members are afraid of ICE (naturalized and vets) and we have a plan in place.
This is Rodney King, George Floyd, Breonna Taylor… on steroids. Maybe now that educated white middle class folks (I am one) are getting gunned down, the country will start to pay attention.
Thank you for this explanation. Much appreciated!
Sinclair Lewis (and others) have been quoted in the 1930’s as saying, “When fascism comes to America, it will be wrapped in the flag and carrying a cross.” How in the world can we find ourselves in this situation now? Surely the people cannot be so foolish as to swallow the lies that are being spread by federal workers and elected or appointed officials.1/24/26
Racism, the deadly sin that continues to haunt our country.
Because my parents generation, the one that fought in "the war" as we used to call it, are almost all gone now, and with them the living memory of what happened.
Could you share the "one-sentence statute to fix the accountability gap?"
I linked to one of them already. There are three easy ways to do it (they differ in some marginal respects, but any of these would be a great start):
1) Amend the FTCA to include constitutional violations as claims for which the federal government itself can be held liable.
2) Enact a standalone statute that simply creates a cause of action for damages for constitutional violations by federal officers (this is the bill linked above).
3) Amend 42 U.S.C. § 1983 (which already authorizes damages suits for constitutional violations by local or state officers) to also include violations under color of "federal law."
Thanks for the response. Might options 2 and 3 result in an uncollectible judgment against the individual officer (yes, I know that might be a deterrent, but would that provide justice for the injured party), and option 1 leaves you with a bench trial and ...[filling in the blank is left as an exercise for the reader]. I vote for a comprehensive "Civil Rights Protections Against Misconduct by Federal Officers" statute. Which, as you intimate, is not likely anytime soon. Again, thanks for sharing your thoughts, especially on a Saturday afternoon.
Indemnification is a problem under virtually any of these schemes. But the idea is that meaningful liability, regardless of who's paying, will create deterrence.
Who in Congress NOW can at all oppose a bill allowing for damage suits arising from by all accounts a gangland-style execution by agents of the State? To have one's life taken in such a callously murderous fashion is surely SOMEWHERE in our Constitution considered beyond the pale of legality, despite ANY claims to "qualified" or other "immunities". At what point does such evidence as that videotaped on the streets of Minneapolis trump legalistic precedent and quibbling about who or who can't be held accountable by criminal law statutes, when a flagrantly despicable and unjustified act — AGAIN by federal goons — is splashed across American media? I ask you.
The statute is 28 U.S.C. § 2679(b)(2)(A), "[exclusiveness of the FTCA] does not extend or apply to a civil action against an employee of the Government which is brought for a violation of the Constitution of the United States."
Without this exception the FTCA would violate the Seventh Amendment jury right, among others.
Steve's excellent 2013 paper is here:
https://scholar.google.com/scholar?cluster=16309774490363923440
Thank you for posting this.
Indeed!
“ It just shouldn’t be the case that the only way to hold the federal government accountable is to elect a new one.”
Republicans, where are you?
Is there anything a state or locality can do to protect its citizens from ICE (or the like)?
Have you noticed that two judges on the D.C. Circuit all but endorsed your 2013 paper in Buchanan v. Barr, 71 F.4th 1003 (D.C. Cir. 2023)? See https://scholar.google.com/scholar_case?case=12495025304229163930
I don't think it's quite right to say that the Court has decided that the Westfall Act's constitutional exception preempts state tort law -- see Sotomayor's partial concurrence in Egbert. The Court has managed to all but overlook the statute and it's doubtful that federal courts would have authority to displace state tort remedies for violations of fundamental constitutional rights. This is what the Tenth Amendment was all about, not mention the Supremacy Clause.
I've prepared this argument in my lawsuit against the United States but it's not clear the federal courts are willing to hear it.
Don't forget, any nonvested government immunity against the people violates Amendment I's Petition clause, passed & ratified for that purpose. (There was no need to amend to empower suits against private conduct.)
Considering this, we should not be surprised by the reaction of many to fix the problem by taking the law into their own hands. We are getting closer to the boiling point.
State of Idaho prosecuted FBI agent who shot Randy Weaver’s wife at Ruby Ridge. Removed to federal court. District Judge found agent’s actions were objectively reasonable as matter of law but 9th circuit reversed saying evidentiary hearing required. No absolute immunity. New Idaho prosecutor then decided not to proceed with case. Prosecution of federal agent not impossible.
What’s to prevent a state from pursuing criminal charges?
Politics?
There's another one-sentence cure for that, but it would have to be an amendment:
"Public elections will be nonpartisan and funded entirely publicly."
Why would “politics” mitigate against a blue state taking action?
Thanks for putting this out immediately.
One of the stunning things is that the DHS agents who were involved in the shooting all left the scene. The same thing happened after the shooting of Renee Good - the agent who shot her left the scene. They claimed the man killed had been carrying a firearm and they must have taken it with them because CBP head Greg Bovino later showed a photo of the weapon that looked like it was laying on a car seat - they removed evidence.
Congress should mandate that any federal agents or officers involved in a shooting must remain on the scene. I understand safety may become a problem, but these guys are bristling with military-style weaponry and there are dozens of them. It is simply barbaric that agents shoot someone to death and then just leave.
Are there any laws in place requiring agents remain in place after such an event?
https://www.thebulwark.com/p/breaking-mn-shooting-victim-ided Video from the "woman in the pink jacket" from the reverse angle
You refuse to acknowledge that the law is what SCOTUS says it is, and the current court has rejected stare decisis, wiped away precedent, wiped away the past. When T invokes the Insurrection Act cancels the 26 elections and the supports the cancellation, so be it, there is no legal remedy
I posted a link to our brief analysis of Baker v Carr and the Luther case, one of the two (Mott is the other) cited in Insurrection Act cases.
What this piece really highlights is how accountability becomes almost an afterthought when democratic systems lack mechanisms to surface and aggregate citizen priorities before rights violations escalate into headline-making tragedies. As Steve explains, the legal and historical obstacles to holding federal officers liable are deeply rooted, but the structural gap is even broader: when public expectations and consent aren’t visible early in the policy and enforcement process, decisions — even lethal ones — proceed without meaningful upstream feedback.
That’s not just a legal problem — it’s a democratic design problem. We’ve seen similar patterns with immigration enforcement, nationwide injunctions, and other tools of federal power: the public sees the consequences only after they occur and then holds the system accountable long after escalation. What’s missing is a way for voter priorities to be documented, aggregated, and publicly visible before crises harden, so accountability isn’t merely retrospective. Platforms like One Voice One Vote Count & Deliver (https://countanddeliver.org) are attempts to address that gap — not by advocating specific outcomes, but by making democratic consent legible early enough to inform choices and constrain reckless action.
If democratic institutions are to recover legitimacy, we need more than argument after the fact — we need visible mechanisms that make public will part of the calculus before escalation becomes the default.
Clearly the victims of DHS’s depredations should get the same deal as those senators.
Outstanding writing on a very complicated topic. Thank you.
I was a volunteer legal (attorney) observer for elections until my state went to mail in ballots. I spent my legal career as a Public Defender. While I have always been willing to put myself in dangerous situations to protect others, I never thought I would seriously consider arming myself. Watching the numerous videos that have already come out today, of a man, Alex Pretti an ICU nurse, who was purportedly an observer using his cell phone, shot in the back then in the chest, I am. Some of my family members are afraid of ICE (naturalized and vets) and we have a plan in place.
This is Rodney King, George Floyd, Breonna Taylor… on steroids. Maybe now that educated white middle class folks (I am one) are getting gunned down, the country will start to pay attention.