For over 150 years, 42 U.S.C. § 1983 has served as a bedrock of civil rights litigation by providing a legal remedy. If a local police officer or deputy sheriff violates a person’s constitutional rights, they can be sued for civil damages. Whether for an illegal search, an unlawful arrest or the use of excessive force, this federal legislation ensures that the Bill of Rights provides a legally enforceable remedy when constitutional rights are violated. But just as importantly, Section 1983 serves as a deterrent to unlawful police conduct.
But Section 1983 applies only to state agents, not federal employees. When bad cops wear federal badges, victims of their misconduct face a nearly insurmountable legal hurdle. In the Bivens case, the U.S. Supreme Court in 1971 created a limited civil remedy where federal agents violate a person’s constitutional rights. Since then, however, the Court has consistently declined to expand Bivens. Today Bivens is considered a “disfavored” judicial activity and is restricted to an extremely limited set of circumstances. The court’s reasoning is not that federal agents should never face civil liability, but that creation of a legal remedy against a federal officer lies with Congress rather than the courts.
This creates a dangerous accountability gap. When federal agents operate with the knowledge that they are virtually immune from civil liability (and you can bet their supervisors and higher-ups in the federal government emphasize that), the incentive to respect constitutional boundaries evaporates.
We see the results of that in Minneapolis, where ICE agents routinely use force that is clearly excessive and make arrests based on the color of a person’s skin rather than on evidence that a crime has been committed. The tragic death of Renee Good highlights the lethal consequences of federal operations that lack guardrails.
The solution lies with Congress. The recently introduced Accountability for Federal Law Enforcement Act would mirror Section 1983 by permitting civil damage suits against federal officers (and the agencies that employ them) who violate a person’s constitutional rights.
The conduct of ICE agents in Minnesota and elsewhere has proven that, without the threat of civil liability, federal power will inevitably overreach. We cannot have a system where the level of protection for one’s constitutional rights depends on the patch on an officer’s sleeve.
It is time for Congress to act. We must ensure that every person can walk the streets without fear of a government that can break the law on a whim and affirm that no one, not even federal agents, is above the law.
W. Charles Curley is a retired Columbus attorney. A significant portion of his law practice was devoted to the representation of municipal police officers.