ARLINGTON, Va.—Until this month, anyone whose constitutional rights were violated by federal police officers faced an uphill battle to hold those officers to account in a court of law. But an argument held earlier this month before the U.S. Supreme Court might signal a shift among not only the Justices but the federal government itself when it comes to allowing such claims to proceed. If this turns out to be the case, this breathes new vitality into two high profile High Court cases currently on appeal by the Institute for Justice involving rogue federal officers who abused their authority in clear violation of two Americans’ constitutional rights. 

On March 2, the Supreme Court heard oral argument in Egbert v. Boule, a case addressing the availability of constitutional claims against federal police. What surprised many Court-watchers was the apparent openness of not only the Justices but the attorney arguing for the U.S. government to allow such claims to proceed, signaling a potential seismic shift enabling ordinary Americans to hold rogue officers to account. 

Earlier this year, the Institute for Justice appealed two such cases to the Supreme Court, but in those cases, the U.S. government held a hard line in its briefing, saying no such claims could be brought. In those cases—Mohamud v. Weyker and Byrd v. Lamb—lawyers for the U.S. government or its agents argued that because the officers worked for the federal government, they could not be held individually accountable when they unlawfully detained both plaintiffs. 

“It is too early to celebrate, but not too early to get to work to make the most of what we heard in Egbert,” said Institute for Justice Attorney Anya Bidwell. “That’s why following the oral argument, the Institute for Justice filed supplemental briefs in Mohamud and Byrd.” 

In the case of Hamdi Mohamud, federal task force officer Heather Weyker fabricated a fictitious crime ring and then framed a 16-year-old Somali refugee, sending her to federal prison for years, even though the officer knew Mohamud had committed no crime. In the case of Kevin Byrd, federal agent Ray Lamb brandished a gun at Byrd in a purely personal matter and even pulled the trigger, trying to kill Byrd, and then used his federal badge to have local police arrest Byrd. In both cases, the U.S. government and private counsel for the officers argued that because the officers involved in these instances worked for the federal government, there was a blanket immunity that prevented Mohamud and Byrd from having their day in court to present their cases against the officers.  

A severe limitation on constitutional remedies against federal officials started with the Supreme Court’s 2017 decision in Ziglar v. Abbasi, where the Court stated that it “disfavored” allowing lawsuits against them. As a result, lower courts of appeals have consistently dismissed claims against federal employees, even in situations where their conduct is so outrageous that qualified immunity cannot shield them.  

Abbasi did, however, leave one carve-out for cases involving claims arising out of run-of-the-mill policing by federal officers. In this context, Abbasi said, Americans could have a day in court. 

But the Fifth and Eighth Circuits soon took Abbasi further, splitting from the rest of the country and holding that neither Byrd nor Mohamud could have their day in court, despite what Abbasi said. Both courts justified this by interpreting Abbasi’s domestic-police carve-out extremely narrowly, thereby creating absolute immunity for anyone employed by the federal government, including federal police.  

“What we heard in Egbert made us feel optimistic,” said IJ Attorney Daniel Rankin. “The Justices seemed interested in preserving the domestic policing carve-out they created in Abbasi, so that when it comes to the use of excessive force by federal police, in circumstances that don’t involve things like national security or illegal immigration, such suits can still proceed.” 

During the oral argument in Egbert, the Justices were joined by the U.S. government in agreeing that cases involving domestic policing should still be allowed to move forward. Before the Court, the government endorsed a Fourth Amendment claim involving any federal agency, so long as it is a “domestic search-and-seizure claim or an excessive force claim.” The government stated that it “has not argued either before or after Abbasi that those cases” should be thrown out. 

“This was interesting to us,” said Patrick Jaicomo, an IJ Attorney, “because the government pretty clearly stated in Mohamud that Hamdi’s claims should be dismissed even though hers is a routine domestic policing case. But if the government has changed its mind, we welcome it. The Fifth and Eighth Circuits are not only in disagreement with other courts now. They are also in a disagreement with the federal government.” 

“The Institute for Justice’s supplemental briefs make exactly this point to the Supreme Court,” said Institute for Justice President Scott Bullock. “Such a split, not only between the circuits but also from the Executive Branch, is a sure sign that review by the Supreme Court is badly needed.”