ARLINGTON, Va.—In Texas, Louisiana and Mississippi federal police are now entitled to absolute immunity from individual accountability, even when they grossly violate someone’s constitutional rights. That’s because the 5th U.S. Circuit Court of Appeals recently ruled that even if federal police beat you for no reason and almost choke you to death—and even if you overcome the defense of qualified immunity at the trial court—federal police are still shielded from constitutional claims, leaving you without a remedy, and thus without a constitutional right.
José Oliva is a Vietnam veteran, who spent his entire career in law enforcement. In 2016, he was on his way to a dentist appointment at his local Veterans Affairs hospital in El Paso, Texas, when three VA police officers violently attacked him for placing his identification card inside a plastic bin, rather than directly handing it to them.
When prosecutors declined to bring charges, José filed a lawsuit against the federal officers to enforce his Fourth Amendment rights. He prevailed at the district court level, where the judge ruled that the officers were not entitled to qualified immunity since their behavior was clearly unconstitutional. But the 5th U.S. Circuit Court of Appeals reversed the district court, holding that—even if the officers were not entitled to qualified immunity—they were absolutely immune because the officers happened to work for the federal, rather than state, government. They could not be sued.
“This holding is clearly erroneous,” explained Anya Bidwell, an attorney with the Institute for Justice. “The constitution applies with the same rigor to federal police as it does to state police. But last month, the U.S. Supreme Court declined to grant José’s petition for certiorari and reverse the 5th Circuit’s ruling. As a result, more than 18,000 federal police in Texas, Louisiana and Mississippi are left 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.
That’s why, in light of all the other decisions that are now providing absolute immunity to federal police, José is asking the Supreme Court to give his petition another look and consider granting it.
“This is a good opportunity for the Supreme Court to make it clear that federal police should be at least as accountable as their state and local counterparts,” said Patrick Jaicomo, an attorney with the Institute for Justice. “If the Court doesn’t weigh in now, the problem will only get worse. Federal authority will mean absolute immunity not only in the 5th Circuit, but across the entire country.”
In a recent decision, the 5th Circuit cited José’s case to shield a Department of Homeland Security officer from accountability after he held a man at gunpoint and had him arrested because the man was asking questions about the involvement of the agent’s son in an apparently drunken car crash. Judge Don Willett observed that now federal police “operate in something resembling a Constitution-free zone” and lamented that under the current state of the law, “[p]rivate citizens who are brutalized—even killed—by rogue federal agents can find little solace” in American courts.
“Judge Willett’s observation should put the Supreme Court on notice that it must restore accountability to our system,” said Institute for Justice Attorney Alexa Gervasi. “Federal officers swear an oath to uphold the constitution, and the courts must hold them to it.”
The need for the Court’s attention to José’s case and the others that follow is underscored by the fact that the federal legislation introduced to address police accountability—the George Floyd Justice in Policing Act and the Ending Qualified Immunity Act—inexplicably excludes federal police. Although more than 100,000 federal officers patrol the United States, they have somehow avoided the scrutiny placed on state and local officers.
“Just because these officers are working for the federal—rather than state—government does not mean that the constitution applies to them any less,” Bidwell said.
Institute for Justice President and General Counsel Scott Bullock added: “Our federal constitution restricts the actions of all government officials. But it is especially troubling that courts have exempted federal officials from its restrictions. It is time for the Supreme Court to make it clear once and for all that a federal badge is not a shield against the constitution.”