In addition to qualified immunity, which shields all government employees—local, state, and federal—from liability, there is a de facto absolute immunity for federal workers who violate the Constitution. Even if a plaintiff can get around de facto immunity, federal workers are still able to claim qualified immunity. As a result, federal workers are doubly insulated from constitutional accountability, making their immunity impossible to pierce. For this reason, the steadily growing number of state-federal task forces has eroded constitutional accountability because courts treat their members as federal workers—even when they are employed by state and local governments

This two-track system of immunity comes from the Supreme Court’s restriction of something called a Bivens remedy—named from a case the Court decided in 1971. Although Bivens held that individuals could sue federal workers who violate the Constitution, the Supreme Court has severely limited Bivens over the past 50 years. 

Today, there are only three very narrow circumstances in which you can sue federal workers: 

  1. When domestic federal police search your home without a warrant and manacle you in front of your family 
  2. When officials at government-run federal prisons violate the Eighth Amendment rights of inmates by failing to provide them with proper medical attention; and 
  3. When Members of Congress terminate your employment on the basis of your gender.

Victims whose circumstances factually deviate from any of the three described above have no remedy against federal officials, period (that’s why we call it de facto absolute immunity)–including when your First or Second Amendment rights are violated.  

Consider what the Supreme Court did in June 2022. First, in Egbert v. Boule, the Court held that courts are essentially never positioned to recognize a remedy against federal officials. Then, two weeks later, the Court refused to hear two petitions protesting two lower courts’ decisions that all but overruled Bivens, leaving these decisions in place.  The first appeal sought to overturn an 8th U.S. Circuit Court of Appeals ruling that granted immunity to a federally deputized St. Paul, Minnesota, police officer whose well-documented lies and deception cost Hamdi Mohamud—who was a teenage Somali refugee—two years of her life unjustly spent behind bars. 

The second IJ appeal, filed on behalf of Kevin Byrd, sought to reverse a 5th Circuit decision that also granted immunity to an officer with a federal badge—a Department of Homeland Security agent who tried to kill Kevin to prevent him from asking questions about the involvement of the agent’s son in a drunken car crash the night before. After seeing a video of the incident, officers released Kevin and arrested the agent. 

As a result of the Court’s refusal to hear Hamdi’s and Kevin’s cases, the Constitution does not protect the millions of residents of Texas, Louisiana, Mississippi, Minnesota, Iowa, Missouri, Arkansas, North Dakota, South Dakota, and Nebraska from abuse by federal agents or their deputized counterparts. By emboldening the courts that are refusing to provide constitutional remedies, the Court’s decision not to hear IJ’s petitions further endangers the rights of Americans in the other 40 states. 

Learn more about our Immunity and Accountability work.

The Institute for Justice’s Project on Immunity and Accountability is devoted to a simple idea: If we the people must follow the law, our government must follow the Constitution.