John Kramer
John Kramer · May 24, 2021

ARLINGTON, Va.—If you are in Mississippi, Louisiana, and Texas, you now cannot sue federal police for violating your constitutional rights, no matter how egregious their conduct. The Supreme Court today refused to hear a case—Oliva v. Nivar—that would have allowed government officials to be held to account. As a result, the erroneous lower court decision by the 5th U.S. Circuit Court of Appeals will stand, leaving more than 18,000 federal police without any judicial oversight for constitutional violations.

What’s worse, this decision is already having a cancerous impact. It has spread to other circuit courts around the nation, giving judges an excuse to ignore gross violations of individual rights by federal government officials.

“Unless the Supreme Court steps in soon, it won’t be only Mississippi, Louisiana and Texas that will be affected,” warned Anya Bidwell, an attorney with the Institute for Justice and co-counsel in Oliva. “Federal police in the rest of the nation could soon operate under this regime of constitutional unaccountability too. Indeed, the 8th U.S. Circuit Court of Appeals recently adopted the same rule, with no accountability in sight for federal police in Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota.”

“The problem is only going to get worse,” Bidwell said. “At some point the Supreme Court will have no choice but to address this issue, but so much damage to human lives will be left in the wake. Can it really be that as long as you wear a federal badge, the Constitution does not apply to you?”

For José Oliva, a 75-year-old war veteran­­ whose appeal was just rejected by the High Court, his legal woes began in February 2016 when he tried to attend a dentist appointment at an El Paso Veterans Affairs hospital. Inexplicably, three VA security guards violently attacked him, forcefully choking José and causing permanent damage to his shoulder. Apparently, one of the guards did not like that José placed his identification card inside a plastic bin, rather than handing it to the officer.

When prosecutors did not bring charges against the officers, José sued in civil court for violations of his constitutional rights. As someone who served in the law-enforcement for 25 years, he took this unnecessary use of excessive force personally. “These officers felt like the law did not apply to them,” José said. “I wanted to prove them wrong. Not just for me, but for all of us who live in this constitutional republic founded on the principle of government accountability.”

José won round one of his lawsuit. The district court denied the officers’ attempt to shield behind qualified immunity, ordering the case to proceed to trial. After all, the district court reasoned, there were plenty of court cases to put VA police on notice that it is unconstitutional for police officers to assault people for no reason.

The officers won round two, however, after they appealed the qualified immunity determination. Interestingly, the 5th Circuit did not even rule on qualified immunity. Instead, it simply held that because VA officers were employed by the federal—rather than state—government, they could not be sued.

If this sounds draconian, that’s because it is. As 5th Circuit Judge Don R. Willett described it, this opinion “erases any doubt” that “[i]f you wear a federal badge, you can inflict excessive force on someone with little fear of liability.”

After losing in the 5th Circuit, José asked the U.S. Supreme Court to take up his case. Today, the Court refused. But neither José nor the Institute for Justice are done fighting.

“I will never give up,” said José. “As we say in the military: duty, honor, country. We leave no-one behind and we don’t give up. I invite every American to join me in this fight. The Constitution is here to protect all of us. It does not take a leave of absence when the perpetrator happens to work for the federal government.”

“José is right,” said Patrick Jaicomo, an IJ lawyer and co-counsel in the case. “We will continue the drumbeat and keep bringing these cases to the U.S. Supreme Court. It is simply wrong that someone like José cannot even open the courthouse door and sue the officers who beat him. If the Constitution doesn’t protect José, we should all be very worried.”

“As Judge Willet said, ‘a written constitution is mere meringue when rights can be violated with nonchalance,’” added Alexa Gervasi, an attorney with the Institute for Justice and another lawyer on the case. “This is not what the founders intended, and it is not how they designed this country. What is the point of the separation of powers if the judiciary cannot check the executive, especially in the context of excessive force?”

“Having a remedy when your rights are violated is essential in a constitutional republic,” said Scott Bullock, president and general counsel of the Institute for Justice. “IJ was founded because of our fundamental belief that no one is above the Constitution and nothing, not even a federal badge, can shield you from accountability. We are here to stay and to see it through to the end: federal officials are subject to the Constitution, just like everyone else.”

José’s case is a part of IJ’s Project on Immunity and Accountability, where we fight to ensure that if citizens must follow the law, then government workers must follow the Constitution.

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