John Kramer
John Kramer · September 10, 2020

Arlington, Va.—On October 6 of this year, the U.S. Supreme Court will hear argument over whether officials from the FBI and other government agencies can be held accountable for violating Americans’ constitutional rights. The case, which was originally scheduled to be heard in March, is a unique opportunity for the Court to send a clear message to the FBI and other government agencies that they cannot trample on constitutional rights with impunity.

“It is a bedrock principle of American law that government officials are not above the law,” IJ Attorney Anya Bidwell explained. “In the 19th century, when federal agents violated plaintiffs’ constitutional rights, they could bring a damages claim. To argue that damages are not ‘appropriate relief’ for the violation of individual rights ignores hundreds of years of American legal history.”

In the case of Tanzin v. Tanvir, the FBI approached Muhammad Tanvir in 2007 and asked him to spy on his religious community. When Tanvir declined, the FBI repeatedly questioned him, harassed him, confiscated his passport, and placed him on the No-Fly List. Despite the absence of evidence that he was a threat to air safety, the government kept Tanvir on the list for years. His inability to fly during that time cost him his job as a long-haul trucker and prevented him from visiting his family, including his wife, son, and parents, who live abroad.

In 2013, Tanvir and several other men, who were also placed on the No-Fly List by retaliating government officials, filed a lawsuit. The men alleged that their placement on the No-Fly List in retaliation for their refusal to spy on their religious communities burdened their right to freely exercise their religion.

On the eve of an important court hearing, however, the government informed the plaintiffs that they had been removed from the No-Fly List and could once again fly. The government then argued that because the men had been removed from the list (albeit years after the fact) the lawsuit should be dismissed. Although the relevant statute provided the plaintiffs “appropriate relief” for what the government and its officials did, the government argued  that money damages were not “appropriate relief” because somehow there should be a presumption against damages in suits against the government.

“This is ironic,” said IJ Attorney Keith Neely. “Historically, damages have been the go-to remedy for government’s violations of your rights. After all, it is much less intrusive for the courts to order a monetary redress than for the law to change or for the government activity to be halted altogether.”

The trial court agreed and dismissed the case, but the 2nd U.S. Circuit Court of Appeals reversed, holding that “appropriate relief” includes damages against government officials who violate individual rights.

The U.S. Supreme Court initially agreed to hear the case in March, but the Court delayed the argument to October in light of COVID-19.

The technical question in the case is whether an individual whose religious rights have been violated can recover damages from the government officials who violated those rights. But the broader issue is whether government officials can be held accountable at all.

Cases like this one are common, but few litigants have the opportunity to be heard by the U.S. Supreme Court. In June, the Supreme Court declined to hear about a dozen cases presenting questions involving government accountability, prompting Justice Clarence Thomas to write a dissent questioning the validity of one of the legal doctrines currently used to shield government officials: qualified immunity.

To ensure that government officials are held accountable to the Constitution and other laws, the Institute for Justice filed an amicus brief in this case, urging the U.S. Supreme Court to allow damages and explaining the historic role damages play in our constitutional system.

IJ’s involvement is part of its broader Project on Immunity and Accountability, which seeks to make constitutional rights enforceable against the government officials who violate them. As part of that project, IJ has brought suit or filed amicus briefs on behalf of numerous victims of government overreach, including an Idaho woman and a Colorado family whose homes were destroyed by the police, and an unarmed 15-year-old Mexican teenager who was shot and killed by a U.S. Border Patrol agent across the border.

Later this upcoming term, the U.S. Supreme Court will hear another IJ case involving government accountability. In the case of Brownback v. King, undercover state and federal agents mistook a Michigan college student for a wanted fugitive, savagely beating him and choking him unconscious. The government wants the Supreme Court to create a large loophole that would protect government agents from liability for their actions, but IJ stands ready to hold them accountable.

“Since the founding of this country, the role of our courts has been to decide whether a person’s rights were violated and, if so, award appropriate relief, which historically includes money damages,” explained IJ Attorney Patrick Jaicomo. “If the Supreme Court adopts the government’s position, government officials can violate the Constitution without consequence. They are effectively above the law.”

As part of IJ’s new Project on Immunity and Accountability, IJ seeks to ensure that individual rights are not a suggestion and that constitutional promises of property rights, free speech, due process, and other rights are actually enforceable.