John Kramer
John Kramer · July 13, 2022

ARLINGTON, Va.—On June 8, 2022, the U.S. Supreme Court announced a new standard for holding federal police accountable. From now on, the only question that is relevant is whether courts should be the ones resolving constitutional claims against federal police or whether Congress should first provide courts with an explicit authorization to do so.

Under this new test, the Institute for Justice (IJ)’s clients—Hamdi Mohamud and Kevin Byrd—should prevail. That is because both cases involve routine Fourth Amendment violations where no one is better positioned than the judiciary to weigh the costs and benefits of opening the courthouse door. After all, that’s what the courts did for the first 200 years of this country’s history. When an individual alleged a discrete violation of an individual right, the courts were the ones to determine whether the violation occurred and ordered an appropriate remedy.

Yet in June, the Court denied Hamdi’s and Kevin’s petitions.

This Friday, July 15, the Institute for Justice will ask the Court to reconsider these decisions. The Court should accept the cases, reverse and vacate the rulings by the courts of appeal and send them back to the lower courts with instructions to look at them again, in light of the new standard.

“We are not asking for the moon here,” said Anya Bidwell, an IJ attorney. “This is what the Court has done in cases all the way through cases decided as recently as this past term. When the Court announced a new standard in IJ’s own educational choice case—Espinoza v. Montana Department of Revenue—the Court remanded a petition presenting a similar question back to the Seventh Circuit. And just this term, when it issued a Second Amendment ruling in New York State Rifle and Pistol Association v. Bruen, it did the same in a case out of New Jersey called Association of New Jersey Rifle and Pistol Clubs v. Bruck.

In Kevin’s case, a rogue Department of Homeland Security officer threatened to kill Kevin to prevent him from looking into a purely personal matter—a drunk-driving incident involving the officer’s son. This is a clear example of a Fourth Amendment violation, with no “systemwide consequences” for the federal government—something that Justice Thomas mentioned as a reason why a court might not be in a position to adjudicate a claim.

In Hamdi’s case, a federal task-force officer’s well-documented lies to the court and to fellow officers caused an innocent teenager to be arrested and imprisoned—another clear Fourth Amendment violation.

“Such constitutional violations can only be redressed through damages after the fact,” Bidwell said. “Basic civics will tell you that it’s within the wheelhouse of the judiciary, not Congress, to decide whether Kevin and Hamdi should have their day in court to make their case and let a judge or jury decide if they’re right. The federal appeals courts and the Supreme Court are so far not allowing them to do even that.”

“Our nation has a long history of ensuring that where there is a constitutional right, there must be a remedy for those whose rights have been violated,” said Patrick Jaicomo, an IJ attorney. “The Supreme Court is now telling us that in most situations involving federal officials, that is no longer true. Federal officers are absolutely immune from accountability for their constitutional misdeeds. But we are here to ask the Court to do what it—and not Congress—was created to do: adjudicate cases like Byrd and Mohamud, which represent routine Fourth Amendment violations.”

“All we are asking of the Court is to send these cases back and let the lower courts reconsider them in light of its new standard,” said Marie Miller, an IJ lawyer. “We are confident that if the lower courts apply this new one-prong test, they will come out on the side of our clients.”

The Byrd and Mohamud cases are litigated as part of the Institute for Justice’s Project on Immunity and Accountability, which seeks to hold government officials accountable when they violate individual rights. As part of the Project, IJ seeks to remove the many special protections that shield government officials from accountability.

For more information on these cases—as well as IJ’s other cases dealing with holding federal officials accountable when they violate someone’s constitutional rights—visit:

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