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.
Hi Steve, thanks for this. Something that's also brewing is in Portland, a PPD officer threatened to arrest an ICE agent if she drove her SUV through a crowd of protestors rather than going around the block. The ICE agent relented, but there seems to be a possibility of a conflict between local law enforcement and federal agents. How would that shake out?
So, when the US government intentionally, and without (apparently) any proof of crime or identity, shoots a Venezuelan fishing (or other) boat to smithereens, killing all occupants of that boat, there are no (legal) consequences for that intentional and (oftentimes) unwarranted extra-judicial killings. Banana Republic indeed!
Welcome to Superpower status. It’s always been a potential issue, kept in check by norms and political considerations. Like so many other now-collapsed barriers.
Then there are potential litigants who can't afford to hire lawyers... or are vulnerable for other reasons. Unless their case is taken up by a group like the ACLU, aren't their options few?
Sometimes we seem to be living in a very Hobbesian world... one in which the government and in this case, the law itself has failed those without resources.
Am I correct in assuming that the sentence "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." should read "After all, even if we can’t agree on what conduct 《constitutes》 violations ...." ?
The more of your and your colleagues posts I read, the more I realize our government has long disdained its citizens and not worked in their favor. It seems like we’ve been quasi-authoritarian (or at least anti-citizen) long before the Trump administration. We’re just seeing more egregious versions now. I knew our country has never been perfect, but wow are we mostly pretty shitty. Oh, and congress needs to authorize repayment to SS of all the money that has been “borrowed”.
I think it's really an important question. I have some discussion about it in one of my suits, 25-cv-02573 (Judge Lambreth - DC). Even suing WITHOUT damages, as a pro se plaintiff as a work-around to the prohibition on damages, does not even get a proper hearing in court, so there really is no such thing as redress for citizens
I have been wondering why there weren't lawsuits of the 1983 sort flying all over the place as a result of the pervasive illegal and unconstitutional conduct by this administration. So thanks for the explanation. Honey Bernstein's example of essentially murdering citizens of Venezuela in international waters just off the coast of Venezuela seems like the most egregious example of actions that plainly call for civil liability, if not criminal liability. Even if those folks were trafficking drugs, our laws and Constitution don't permit us to imprison them without notice and trial, much less to summarily execute them without any process at all. In the same vein, kidnapping undocumented people off the streets and confining them without due process in gulags in foreign countries (like CECOT) are another example of harms that cry out for civil and perhaps criminal liability. And beyond the question of due process, even if the government gave those immigrants some due process, how is it that the government can constitutionally confine them to a foreign prison without access to counsel or any due process rights for life? The right to deport an illegal alien is not the same as a right to imprison them, especially to imprison them for life in a foreign country. The fact that this beyond-outrageous behavior has effectively been ruled constitutional by the Supreme Court scares the daylights out of me. I just hope it motivates enough of my fellow Americans, Republican and Democrat, to take the House and maybe the Senate out of Republican control.
Great article, Steve. I’ve been beating this drum for years.
One additional wrinkle: Even if you could sue these officers, the fact that they’re wearing masks and no name tags makes it incredibly difficult to learn their identify and serving them with process.
I suggest that everyone stop assuming that the unidentified, masked men are government officials of any kind. To my knowledge, the Trump administration has never provided evidence that they are, and this administration doesn't deserve the benefit of the doubt.
I wouldn't be surprised to learn that ICE and other federal agencies are using thugs, perhaps including some of the Jan. 6 rioters, to help them round up illegal immigrants and others that they want to deport.
I agree. If alleged agents fail/refuse to produce credible official I.D. then the reasonable presumption would be they do not have law enforcement authority (in Indiana, state statute requires LEOs to either be in uniform or in a clearly marked LE vehicle before they can make arrest); if no law enforcement authority, then the agents’ attempt to confine/abduct the victim is likely a felony offense.
IMO, 911 should be called and local law enforcement officers should be dispatched to intervene/investigate. Local LEOs can confirm the identity of the alleged agents (if they are, indeed, federal agents), and include the info in the incident report. If the alleged agents identities are not confirmed, the local LEOs can arrest them.
IMO, this would be the most reasonable approach, because, otherwise, it is a only matter of time before the individuals targeted by ICE (or those trying to protect them from an unlawful abduction) realize they have a right to self-defense (in Indiana, this includes use of “deadly force”) and people start getting shot.
Thank you for this informative post. I am calling and writing Senator Adam Schiff, my elected representative, to request he and staff read your important post.
Senator Schiff recently reintroduced his "Protecting Our Democracy Act" (see link below which includes links to the full text of the bill, section-by-section summary and fact sheet). I will suggest Senator Schiff incorporate language that addresses the deficiency you describe, perhaps using some of those which you propose. Hopefully, he'll reach out to you to discuss.
Other readers should also call or write their elected representatives and ask them to sign onto Senator Schiff's bill and request the same.
We know Republicans will oppose the Act in its entirety. That's fine. They'll be on the record as opposing reforms to protect our Democracy. But when Democrats regain power, they will be in a position to move quickly to correct the deficiencies that have led to the threat we face today.
Mr. Vladeck, If you want to remain relevant, you need to discuss ways to get us out of the current crisis.
Whining impotently about obvious abuses while wishing for statutory remedies that have zero chance of being passed and implemented in the current environment is legal thumb-twiddling that only encourages a dangerously complacent perception that we still have a functioning judicial system or a functioning congress that can and will restrain Trump and protect our individual rights.
To the contrary, thanks to Roberts’ cowardice, although lower courts have tried valiantly to fill the gap, on the most decisive issues SCOTUS will continue to facilitate Trump’s abuses and lend his lawlessness a veneer of legality. What will it take for you to recognize and come to grips with that reality?
TheGOP Congress is at best worthless and at worst complicit.
Wealthy private individuals and large corporations, which should serve as an additional check on govt abuses, scramble to bend the knee to avoid Trump’s regulatory extortion.
SCOTUS will not save us.
Congress will not save us.
Wealthy and powerful corporations and individuals will not save us.
We The People must save ourselves and find the least destructive way to save our republic. Street protests are generally counterproductive because they allow Trump to foment violence to justify greater claims of emergency powers. In our commercial republic, our greatest power is as economic actors acting in concert. To that end, I recommend the anti-Trump resistance begin engaging in work stoppages and targeted boycotts of increasing frequency.
I don’t disagree with any of the assertions you make here, expect that Professor Vladeck isn’t performing a valuable function in our discourse. Steve is a legal scholar, not a politician or pundit. He is performing his function with extraordinary skill and consistency (I’ve been a follower since the first Trump Admin). The issue, and rightly acknowledged, is the lack of integrity in Congress, the Judiciary, and amongst the rest of the political class in using Mr. Vladeck’s analysis to inform meaningful action. For that abdication of duty, we all suffer.
Some dipwad mailman refused to deliver mail to a rental property owned by a black woman and rented by a white tenant (including some mail addressed to the woman) because he didn't like the fact that a black woman was the owner and a white man was the renter. And our legal system is such that the woman may have no way to sue for damages.
Where is the outcry regarding blowing up boats in international waters? Where is the international outrage! So many missed opportunities to be on the right side of history, or the here-and-now.
As depressing as this is, thank you for shedding light on and explaining it.
Hi Steve, thanks for this. Something that's also brewing is in Portland, a PPD officer threatened to arrest an ICE agent if she drove her SUV through a crowd of protestors rather than going around the block. The ICE agent relented, but there seems to be a possibility of a conflict between local law enforcement and federal agents. How would that shake out?
I wonder about that, too
So, when the US government intentionally, and without (apparently) any proof of crime or identity, shoots a Venezuelan fishing (or other) boat to smithereens, killing all occupants of that boat, there are no (legal) consequences for that intentional and (oftentimes) unwarranted extra-judicial killings. Banana Republic indeed!
Welcome to Superpower status. It’s always been a potential issue, kept in check by norms and political considerations. Like so many other now-collapsed barriers.
Then there are potential litigants who can't afford to hire lawyers... or are vulnerable for other reasons. Unless their case is taken up by a group like the ACLU, aren't their options few?
Sometimes we seem to be living in a very Hobbesian world... one in which the government and in this case, the law itself has failed those without resources.
This is a terrible situation that should not exist in anything wanting to call itself approaching a representative democracy.
I wonder whether qualified immunity or the major questions doctrine is the most egregiously made-up of the two doctrines.
Am I correct in assuming that the sentence "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." should read "After all, even if we can’t agree on what conduct 《constitutes》 violations ...." ?
The more of your and your colleagues posts I read, the more I realize our government has long disdained its citizens and not worked in their favor. It seems like we’ve been quasi-authoritarian (or at least anti-citizen) long before the Trump administration. We’re just seeing more egregious versions now. I knew our country has never been perfect, but wow are we mostly pretty shitty. Oh, and congress needs to authorize repayment to SS of all the money that has been “borrowed”.
I think it's really an important question. I have some discussion about it in one of my suits, 25-cv-02573 (Judge Lambreth - DC). Even suing WITHOUT damages, as a pro se plaintiff as a work-around to the prohibition on damages, does not even get a proper hearing in court, so there really is no such thing as redress for citizens
I have been wondering why there weren't lawsuits of the 1983 sort flying all over the place as a result of the pervasive illegal and unconstitutional conduct by this administration. So thanks for the explanation. Honey Bernstein's example of essentially murdering citizens of Venezuela in international waters just off the coast of Venezuela seems like the most egregious example of actions that plainly call for civil liability, if not criminal liability. Even if those folks were trafficking drugs, our laws and Constitution don't permit us to imprison them without notice and trial, much less to summarily execute them without any process at all. In the same vein, kidnapping undocumented people off the streets and confining them without due process in gulags in foreign countries (like CECOT) are another example of harms that cry out for civil and perhaps criminal liability. And beyond the question of due process, even if the government gave those immigrants some due process, how is it that the government can constitutionally confine them to a foreign prison without access to counsel or any due process rights for life? The right to deport an illegal alien is not the same as a right to imprison them, especially to imprison them for life in a foreign country. The fact that this beyond-outrageous behavior has effectively been ruled constitutional by the Supreme Court scares the daylights out of me. I just hope it motivates enough of my fellow Americans, Republican and Democrat, to take the House and maybe the Senate out of Republican control.
Great article, Steve. I’ve been beating this drum for years.
One additional wrinkle: Even if you could sue these officers, the fact that they’re wearing masks and no name tags makes it incredibly difficult to learn their identify and serving them with process.
I suggest that everyone stop assuming that the unidentified, masked men are government officials of any kind. To my knowledge, the Trump administration has never provided evidence that they are, and this administration doesn't deserve the benefit of the doubt.
I wouldn't be surprised to learn that ICE and other federal agencies are using thugs, perhaps including some of the Jan. 6 rioters, to help them round up illegal immigrants and others that they want to deport.
I agree. If alleged agents fail/refuse to produce credible official I.D. then the reasonable presumption would be they do not have law enforcement authority (in Indiana, state statute requires LEOs to either be in uniform or in a clearly marked LE vehicle before they can make arrest); if no law enforcement authority, then the agents’ attempt to confine/abduct the victim is likely a felony offense.
IMO, 911 should be called and local law enforcement officers should be dispatched to intervene/investigate. Local LEOs can confirm the identity of the alleged agents (if they are, indeed, federal agents), and include the info in the incident report. If the alleged agents identities are not confirmed, the local LEOs can arrest them.
IMO, this would be the most reasonable approach, because, otherwise, it is a only matter of time before the individuals targeted by ICE (or those trying to protect them from an unlawful abduction) realize they have a right to self-defense (in Indiana, this includes use of “deadly force”) and people start getting shot.
Steve,
Thank you for this informative post. I am calling and writing Senator Adam Schiff, my elected representative, to request he and staff read your important post.
Senator Schiff recently reintroduced his "Protecting Our Democracy Act" (see link below which includes links to the full text of the bill, section-by-section summary and fact sheet). I will suggest Senator Schiff incorporate language that addresses the deficiency you describe, perhaps using some of those which you propose. Hopefully, he'll reach out to you to discuss.
Other readers should also call or write their elected representatives and ask them to sign onto Senator Schiff's bill and request the same.
We know Republicans will oppose the Act in its entirety. That's fine. They'll be on the record as opposing reforms to protect our Democracy. But when Democrats regain power, they will be in a position to move quickly to correct the deficiencies that have led to the threat we face today.
https://www.schiff.senate.gov/news/press-releases/news-sen-schiff-reintroduces-his-landmark-proposal-to-protect-democracy-close-legal-loopholes-enabling-widespread-abuses-of-presidential-power/
Mr. Vladeck, If you want to remain relevant, you need to discuss ways to get us out of the current crisis.
Whining impotently about obvious abuses while wishing for statutory remedies that have zero chance of being passed and implemented in the current environment is legal thumb-twiddling that only encourages a dangerously complacent perception that we still have a functioning judicial system or a functioning congress that can and will restrain Trump and protect our individual rights.
To the contrary, thanks to Roberts’ cowardice, although lower courts have tried valiantly to fill the gap, on the most decisive issues SCOTUS will continue to facilitate Trump’s abuses and lend his lawlessness a veneer of legality. What will it take for you to recognize and come to grips with that reality?
TheGOP Congress is at best worthless and at worst complicit.
Wealthy private individuals and large corporations, which should serve as an additional check on govt abuses, scramble to bend the knee to avoid Trump’s regulatory extortion.
SCOTUS will not save us.
Congress will not save us.
Wealthy and powerful corporations and individuals will not save us.
We The People must save ourselves and find the least destructive way to save our republic. Street protests are generally counterproductive because they allow Trump to foment violence to justify greater claims of emergency powers. In our commercial republic, our greatest power is as economic actors acting in concert. To that end, I recommend the anti-Trump resistance begin engaging in work stoppages and targeted boycotts of increasing frequency.
I don’t disagree with any of the assertions you make here, expect that Professor Vladeck isn’t performing a valuable function in our discourse. Steve is a legal scholar, not a politician or pundit. He is performing his function with extraordinary skill and consistency (I’ve been a follower since the first Trump Admin). The issue, and rightly acknowledged, is the lack of integrity in Congress, the Judiciary, and amongst the rest of the political class in using Mr. Vladeck’s analysis to inform meaningful action. For that abdication of duty, we all suffer.
Just yesterday there were oral arguments in a case involving a tort claim against the Post Office for intentional mis-delivery of a person’s mail.
I read the law has a “postal exception”.
Some dipwad mailman refused to deliver mail to a rental property owned by a black woman and rented by a white tenant (including some mail addressed to the woman) because he didn't like the fact that a black woman was the owner and a white man was the renter. And our legal system is such that the woman may have no way to sue for damages.
Yes, Congress and the Supreme Court have taken away any remedy. Doesn’t seem right.
Where is the outcry regarding blowing up boats in international waters? Where is the international outrage! So many missed opportunities to be on the right side of history, or the here-and-now.
And so they mask their faces as an added step to be sure no one can even try to seek a remedy for their bad behavior and abuse.