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

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