John Kramer
John Kramer · June 21, 2022

ARLINGTON, Va.—A little more than one week after the U.S. Supreme Court announced in Egbert v. Boule that federal police engaged in immigration-related work cannot be sued when they violate the Constitution—regardless of when, where or how egregiously they act—the Court has now signaled that all federal police are above the law. Since January 2022, the Court has held a pair of cases filed by the Institute for Justice (IJ), challenging the grant of absolute immunity to federal police engaged in domestic policing. This morning, the Court declined to hear both petitions, leaving victims of constitutional abuse without a remedy in American courts.

“It’s hard to overstate the damage done to federal police accountability by the Supreme Court’s decisions this month,” said IJ Attorney Patrick Jaicomo. “At a time when accountability is so badly needed and immunity has been so thoroughly repudiated, this is a very discouraging move in the wrong direction.”

The first appeal sought to overturn an 8th U.S. Circuit Court of Appeals ruling that granted immunity to a federally deputized St. Paul, Minnesota, police officer whose well-documented lies and deception cost Hamdi Mohamud—who was a teenage Somali refugee—two years of her life unjustly spent behind bars.

The second IJ appeal, filed on behalf of Kevin Byrd, sought to reverse a 5th Circuit decision that also granted immunity to an officer with a federal badge—a Department of Homeland Security agent who tried to kill Kevin to prevent him from asking questions about the involvement of the agent’s son in a drunken car crash the night before. After seeing a video of the incident, officers released Kevin and arrested the agent.

Considered alongside Egbert, which addressed immigration-related federal police, Hamdi’s and Kevin’s cases addressed federal police involved in domestic policing. Nearly all of the more-than-100,000 federal police who patrol across the country fall into one of these two categories. And the Supreme Court has now held in Egbert and signaled by denying IJ’s petitions that all federal police are now above the law. They cannot be sued, regardless of how egregiously they violate the Constitution and their oaths to uphold and defend it.

“Hamdi, Kevin, and everyone else whose rights have been and will be violated by federal police deserve better than this,” explained IJ Attorney Anya Bidwell. “This country’s founding principles included the common-sense idea that courts exist to decide legal questions and provide remedies when rights are violated. Sadly, the Court no longer seems to credit that principle.”

The Court’s refusal to hear Hamdi’s and Kevin’s cases leaves in place rulings that effectively prohibit all claims against federal police. As a result, the Constitution does not protect from abuse by federal police the millions of residents of Texas, Louisiana, Mississippi, Minnesota, Iowa, Missouri, Arkansas, North Dakota, South Dakota, and Nebraska. By emboldening the courts that are refusing to provide constitutional remedies, the Court’s decision not to hear IJ’s petitions further endangers the rights of Americans in the other 40 states.

“Through our Project on Immunity and Accountability, IJ will continue the fight to restore accountability and reject immunity for constitutional violations of all sorts,” said Institute for Justice President Scott Bullock. “We have cases pending across the country, challenging the sort of federal immunity at issue in these cases, as well as qualified immunity, prosecutorial immunity, and other doctrines that shield government officials who violate individual rights. We will continue this quest for justice in the courts, legislatures and in the court of public opinion nationwide until this constitutional wrong is made right.”

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