IJ to SCOTUS: If the Government Abuses Your Rights, It Has to Pay You Back

J. Justin Wilson
J. Justin Wilson · February 13, 2020

Arlington, Va.—Next month, the U.S. Supreme Court will consider whether officials from the FBI and other government agencies can be held accountable for violating Americans’ constitutional rights. If the Supreme Court decides they cannot be, it will send a clear message to the FBI and other government agencies that they can trample on constitutional rights with impunity.

“In the 19th century, when federal agents violated plaintiffs’ constitutional rights, they could bring a damages claim,” said IJ Attorney Anya Bidwell. “Unfortunately, those rights eroded over the past century. To argue that damages are not ‘appropriate relief’ for the violation of individual rights ignores hundreds of years of American legal history and requires the courts to create policy-based exceptions to the law, invading the constitutional role of Congress.”

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 there being no 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 it had finally halted its bad behavior, the men were entitled to nothing for what had happened.

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

The U.S. Supreme Court has agreed to hear the case next month. 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. The government will often give up in response to a lawsuit or on the eve of trial. When it does, a court can no longer order the government to stop because it already has. In these circumstances, as the Supreme Court has famously said, it is “damages or nothing.” Of course, the government always argues for nothing and usually gets it.

To ensure that government officials are held accountable to the law and Constitution, the Institute for Justice has filed an amicus brief in this case, urging the U.S. Supreme Court to allow damages and explaining the historic role they play in our constitutional system. Both before and after the Constitution and Bill of Rights were ratified, courts ordered damages against government officials who violated individual rights. And for just as long, courts explained that damages are essential to government accountability. That is just as true today as it was at the framing.

“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,” added 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.