By now, many of our readers have heard of qualified immunity. It is a pernicious legal doctrine that shields government officials from accountability for violating someone’s rights unless a court has previously ruled that it was “clearly established” those precise actions were unconstitutional. If no such decision exists—or if it exists but in another jurisdiction—the official is immune from suit, even if the official intentionally, maliciously, or unreasonably violated the law or the Constitution.
While overcoming qualified immunity is very difficult, it is still possible. Even judges highly deferential to the government feel compelled to at least occasionally let cases involving excessive force, for instance, proceed. After all, it is hard to argue that a local police officer in Louisiana—to give one recent example—was not already on notice that gratuitously punching a nonthreatening arrestee in the ribs would violate the Fourth Amendment’s prohibition on the use of unreasonable force.
Yet, even when qualified immunity is no longer an obstacle, there is a large class of officials who still cannot be sued: the more than 100,000 who work for the federal government. This creates a stark difference in litigation outcomes. Although the Louisiana officer could be sued for his use of excessive force, a court threw out a Fourth Amendment suit against federal police who assaulted a patient at a Veterans Affairs hospital in Texas. In both cases, the plaintiffs overcame qualified immunity. But because the VA law enforcement agents happened to work for the federal government, they were off the hook.
In other words, in America today, a federal badge equals near-absolute immunity.
This exemption to accountability for federal workers has no basis in history or common sense. That’s why, in August, IJ filed two new petitions asking the U.S. Supreme Court to rein in the preferential treatment of federal officers.
Our client in the first petition is Hamdi Mohamud, an innocent Somali refugee who at age 16 was wrongly imprisoned for nearly two years. The reason? A federal task force officer lied and falsely implicated her in a crime, solely to protect an informant and attempt to salvage an unraveling, unrelated investigation.
The second case is on behalf of Kevin Byrd, a mechanic who was held at gunpoint and unlawfully detained by an officer working for the Department of Homeland Security. Kevin was investigating the agent’s son’s involvement in a drunk driving accident, and the officer wished to stop him.
Both Hamdi and Kevin overcame qualified immunity—only to watch their cases evaporate because the officers who violated their rights carried federal badges. If not for America’s current dual-track system of constitutional accountability, both cases would have proceeded to trial.
For the first 200 years of this nation’s existence, Americans could sue federal officers for unconstitutional conduct. That was consistent with the founding principle that for rights to have meaning, they must be enforced. Now the U.S. Supreme Court has two more opportunities to reaffirm this principle. We will not give up until it does.
Anya Bidwell is an IJ attorney and the Elfie Gallun Fellow in Freedom and the Constitution.