Bonus 182: Damages as a (Missing) Deterrent

It's worth reflecting on how different things might look right now if federal officers—or the federal government itself—faced a meaningful specter of monetary liability for constitutional violations.

Welcome back to the weekly bonus content for “One First.” Although Monday’s regular newsletter (and unscheduled issues) will remain free for as long as I’m able to do this, I put much of the weekly bonus issue behind a paywall as an added incentive for those who are willing and able to support the work that goes into putting this newsletter together every week. I’m grateful to those of you who are already paid subscribers, and I hope that those of you who aren’t will consider a paid subscription if and when your circumstances permit:

I wanted to take a moment to look a bit more holistically at what’s happening right now—and the far too many examples we’re seeing of federal officers, especially (but not exclusively) law enforcement officers, acting in ways that at least appear to violate the constitutional rights of those on the receiving end. The question in so many of these cases is what remedies—if any—the victims might have against the offending officers, or even against the federal government itself.

And the answer, unfortunately, is “very few.” Some of that is because of the doctrine of “sovereign immunity” (which limits when the federal government can be sued directly), and the very limited respects in which Congress has waived that immunity. Some of that is because, between them, Congress and the Supreme Court have radically circumscribed the cases in which individual federal officers can be sued themselves for violating our rights. And some of that is because, even when they can be sued, the officers will have immunity unless the unlawfulness of their behavior was already “clearly established.”

Leaving aside how we got here (although I’ll reflect on that a bit below the fold), the upshot is that a federal officer today faces almost no meaningful specter of losing a damages lawsuit even for actions that violate clearly established constitutional rights. The result is not just that victims of constitutional violations by federal officers can almost never be made whole; it is the broader disappearance of perhaps the most important feature (indeed, what the Supreme Court has called the “core . . . purpose”) of such remedies: their deterrent effect. A more robust and effective damages regime obviously would not prevent unconstitutional conduct by government officers. But it sure would be an easy way to reduce its frequency—and it would also be a remarkably easy statute to write.

A masked ICE agent pepper-spraying Pastor David Black of the First Presbyterian Church of Chicago during protests in Broadview, Illinois. Photo Credit: Ashlee Rezin, Chicago Sun-Times

For those who are not paid subscribers, we’ll be back Monday (if not sooner) with our regular coverage of the Supreme Court. For those who are, please read on.

---

At the Founding, and for much of American history, federal officers were subject to damages liability principally under state law. Under the accountability model that prevailed well into the twentieth century, victims of misconduct by federal officers would bring state-law tort claims against the officer; the officer would invoke their government capacity as a defense; and the constitutional question would arise in the context of whether the plaintiff could overcome that defense. Indeed, as late as 1963, the Supreme Court would acknowledge both the history and well-settled existence of this regime.

Holding individual officers liable for scope-of-employment torts didn’t make all that much sense in cases in which the tortious conduct was committed as part of their job duties, and not just because they acted ultra vires. That’s a big part of why, in 1946, Congress for the first time provided significant waivers of the federal government’s sovereign immunity in tort—enacting the Federal Tort Claims Act, which allows for certain tort suits be brought directly against the United States. Tellingly, though, the FTCA did not waive the federal government’s sovereign immunity for constitutional claims, or for any intentional torts.

It was against that backdrop that, in 1971, the Supreme Court decided Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, which held that an individual whose Fourth Amendment rights had been violated by federal officers could sue for damages through a cause of action inferred from the Constitution itself. And three years later, Congress provided yet more liability in cases of law enforcement overreach—amending the FTCA to authorize suits directly against the federal government when federal law enforcement officers committed one of six specific intentional torts.¹

Thus, by the mid-1970s, there was a relatively robust system for obtaining damages arising out of tortious conduct by federal officers—especially law enforcement officers. And although these regimes were intended at least in part to provide restitution to victims of government misconduct, the Supreme Court also regularly emphasized that “the purpose of Bivens is to deter the officer.” To be sure, at the same time, the Court was in the middle of expanding the scope of qualified immunity—to deny recovery in cases in which officers’ misconduct did not violate “clearly established” constitutional rights.

Qualified immunity has, no doubt, been a lightning rod. But the critical point for present purposes is what is necessarily true in cases in which it would not provide a complete defense—that the officer did violate “clearly established” rights of which a reasonable officer should have known. Thus, the specter of Bivens in cases in which qualified immunity would not be available—i.e., in those especially egregious cases—was viewed as an important means of deterring intentionally wrongful behavior by federal officers.

Then, three things happened to largely vitiate that deterrent.

First, the Court began scaling back the availability of Bivens—slowly, and then aggressively, to the point that there are vanishingly few circumstances today in which Bivens suits remain available. Indeed, on the day the justices rose for their summer recess this June, they handed down a largely unnoticed summary reversal in a Bivens case—because it was, apparently, so obviously clear that a federal prisoner could not bring a Bivens claim based on allegedly excessive force in violation of the Eighth Amendment. (There were no public dissents.)

Second, the Court also made it far more difficult for plaintiffs to use prospective relief to stop unconstitutional conduct by government officers—holding, in City of Los Angeles v. Lyons, that plaintiffs lacked standing to obtain an injunction unless they could show not only that the unconstitutional behavior to which they had already been subjected was likely to recur, but that it was more than just the acts of a single, rogue officer. (Lyons was one of the—dubious—grounds on which Justice Kavanaugh defended the Supreme Court’s recent stay in the Vasquez Perdomo ICE raids case.)

Thanks to Lyons, as Justice Kennedy would put it in 2017, “individual instances of . . . law enforcement overreach . . . are difficult to address except by way of damages actions after the fact.” Thus, although injunctive relief remains relatively available to challenge ongoing unconstitutional conduct by federal officers, it is very difficult to show that the unconstitutional conduct is ongoing (see Kavanaugh in Vasquez Perdomo), and many—if not most—constitutional violations are over before the victims have the ability to challenge them in court.

Finally, in 1988, and almost certainly by accident, Congress closed the back door—enacting a statute (the Westfall Act) that eliminated any remaining state tort claims against federal officers arising out of the scope of their federal employment. Since 1988, when federal officers violate constitutional rights, plaintiffs are often limited to “Bivens or nothing.” And lately, that has invariably meant “nothing.”

The gradual but undeniable result of these developments has been an alarming decrease in accountability for unconstitutional conduct by federal officers. Of course, litigation isn’t the only way to hold the executive branch accountable for constitutional violations. But as Congress has grown increasingly disinterested in accountability as an institutional (as opposed to partisan) concept, the result has been to eliminate the deterrence that, however imperfectly, might have helped to rein in at least some of the conduct of prior generations of federal officers.

As some readers may know, one of my three arguments in the Supreme Court was in one of the Court’s most recent Bivens cases—Hernández v. Mesa, which arose out of the (allegedly) unprovoked cross-border shooting of a 15-year-old Mexican national by a Border Patrol agent. At the end of the oral argument in that case, I used my rebuttal to attempt to warn the Court about the consequences of categorically closing the door on damages suits in those kinds of cases:

for law enforcement officers specifically, this Court has long rejected the argument that there should be any context in which law enforcement officers, because of the frequency with which they interact with average individuals, because of the nature of their interactions, because of the powers they have to search, to seize, to arrest in this context, to use lethal force, [should have] absolute immunity and instead justified a more narrower, qualified kind of immunity for those most likely to come face-to-face with private citizens. Distilled to its simplest, the government’s position in this case is that officers in what is self-described as the nation’s largest law enforcement agency should have a functional absolute immunity at least where foreign nationals are concerned. And our submission is that that is not consistent with how this Court has always understood the relationship between causes of action and immunity defenses in this context. It is not required by any of this Court’s Bivens decisions. It does not abide by this Court’s suggestion in Abbasi that there are strong reasons and powerful reasons to retain Bivens in this context. And it would eliminate the one deterren[t] that is meaningfully available to ensure that officers in the nation’s largest law enforcement agency are complying with the law.

We lost, 5-4.

***

The most exasperating part of all of this is that fixing this problem would be the work of a one-sentence statute. Congress could simply subject federal officers to the same liability that state and local officers currently face under 42 U.S.C. § 1983. Alternatively, Congress could amend the law enforcement proviso in the FTCA to subject the federal government (versus individual officers) to tort liability for all, or even some, constitutional violations. Or it could codify Bivens, specifically.

Any of these measures would not just be well within Congress’s power; they ought to be bipartisan and non-ideological. After all, even if we can’t agree on what conduct constitutions violations of clearly established constitutional rights, we should all be able to agree that, when that line is crossed, there really ought to be at least some remedy. The alternative, alas, is one that we’re increasingly seeing play out—on the streets of Los Angeles, Chicago, and Portland; and in the halls of government office buildings in Washington.

---

We’ll be back Monday (if not sooner) with our regular coverage of the Supreme Court. Until then, I wish you all a great weekend—especially Yankees fans, who should now have lots more time on their hands.

1. The six intentional torts are “assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution.” Even then, though, the FTCA only authorizes liability if the officer would’ve been similarly liable under the law of the state in which the tort took place. So if that state would have recognized an immunity defense had the same conduct been undertaken by a local or state officer, then no FTCA claim will be available.