Are Federal Officials Above The Law?

The rights set out in the U.S. Constitution are supposed to protect us from invasions of civil liberties by federal, state, and local officers alike. But when our rights are violated by federal officials, redress in the courts is especially hard to obtain. As a result, federal officers and agents effectively operate in what one judge (Judge Willett of the 5th Circuit) has deemed a “Constitution-free zone.” This is disturbing because when federal officers know they can violate constitutional rights without consequence, they disregard our rights more readily and violations proliferate.

Exhibit A is the case of IJ client and military veteran George Retes. On July 10, 2025, George was driving to work as a security guard at a farm in Southern California. Unbeknownst to him, Immigration and Customs Enforcement had arrived at the farm and protesters were demonstrating in response.

Federal agents blocked his path, pepper sprayed him, violently arrested him without a warrant, and ignored his insistence that he was a U.S. citizen simply trying to get to work. Instead, they locked him in jail for three nights. He was never given a phone call, access to an attorney, or a hearing before a judge—not even a shower to wash chemical irritants off his skin. 

While locked up incommunicado, George missed his daughter’s third birthday, his PTSD flared up, and his family (who did not know where he was) frantically searched for him. On the fourth day, George was simply released with his belongings and told that he faced no charges. He was given no apology or explanation.

Federal officers brazenly violated George’s constitutional rights, not to mention California law. The Fourth and Fifth Amendments prohibit officers from denying a phone call. People arrested and detained without a warrant generally must be given a probable-cause hearing with a judge within 48 hours. And the physical treatment of a detainee must be justified as reasonable.

George is far from alone. IJ client Penny McCarthy was snatched off her driveway while she was doing yardwork and locked in a federal detention center by U.S. Marshals who inexcusably mistook her for someone else. IJ client Trina Martin and her then-7-year-old son were awakened by a flash-bang grenade when an FBI SWAT team didn’t bother to check if they had the right address before executing a pre-dawn raid on an innocent family’s home.

But for people like George, Penny, and Trina, the road to accountability is rife with unjustified barriers. We are determined to take those barriers down.

To start, victims used to be able to sue federal officials directly under the Constitution. But the Supreme Court has almost completely blocked off that avenue for relief. In fact, judges and practitioners question whether that avenue now remains open to anyone.

Nor can victims of federal abuse sue under the civil rights statute that Congress enacted in the wake of the Civil War, because it only allows suits against state or local officials. Courts have interpreted this to also shield members of state-federal task forces, even if those officers were acting entirely in a state-law capacity. 

As a result, if a federal official violated your rights, you generally must resort to the Federal Tort Claims Act (FTCA)—which is a viable, though not ideal, path to federal accountability. 

In theory, the FTCA lets victims sue the United States government for certain wrongs by federal employees. But it is also riddled with exceptions, immunities, and procedural traps.

For example, the FTCA has an exception for acts by officers carrying out a “discretionary function.” Courts across the country disagree about how to apply this rule, but many have stretched this immunity to cover most acts by law enforcement and other government agents.

Still, we at IJ are charting paths through the FTCA’s barriers. To start, we argue that when officers violate the U.S. Constitution, the FTCA is not the only potential remedy; victims must be able to sue federal officials under state law, as they did at the Founding. We also argue that the discretionary-function immunity is actually quite narrow and, in any case, does not apply to constitutional violations. 

And if the FTCA forecloses all remedies for constitutional violations, the FTCA itself must be unconstitutional. If you have no recourse when your constitutional rights are violated, those rights don’t really exist at all.

George’s, Penny’s, and Trina’s cases are all on the cutting edge of the law in this area. They stand for the basic idea that where there is a wrong—even by federal officials—there must be a remedy. And no one is above the law, let alone the Constitution.

Marie Miller is an IJ attorney.