Federal judge decries “Constitution-free zone” that courts have created in which “individuals whose constitutional rights are violated at the hands of federal officers are essentially remedy-less.”
Arlington, Virginia—On May 20, the U.S. Supreme Court is expected to consider whether to grant review in yet another police brutality case, this time involving a 70-year-old veteran who was assaulted by federal police in a VA hospital. With the briefing for review now complete, all that is left is for the High Court to decide is if they will take this case and determine whether federal officers who attacked the veteran will be held to account. The federal appeals court in the case ruled the officers could escape accountability because they work for the federal—rather than state or local—government.
More than five years ago, Vietnam veteran José Oliva was headed into a dental appointment at a Veterans Affairs hospital in El Paso when three VA police officers wrenched his arm behind his back, choked him, and slammed him to the ground, causing damage that required surgery. What sparked the assault? José had told one of the officers his ID was in the X-ray bin instead of placing his license directly in the officer’s hands.
As the video of this assault shows, José did not provoke the attack, and with 25 years of federal law enforcement experience under his belt, José knew better than to resist.
Prosecutors refused to hold the officers accountable, so José filed suit in federal court for the officers’ violation of his Fourth Amendment right against excessive force. José won in the trial court, where the court held that the officers violated clearly established law by using force without provocation, but the 5th U.S. Circuit Court of Appeals reversed. It held that José could not sue the officers because they worked for the federal—rather than state or local—government and, therefore, were immune from suit.
That’s when José teamed up with the Institute for Justice. “The Supreme Court has repeatedly held that federal officials can be held personally liable for executing unreasonable searches and searches,” explains IJ Attorney Patrick Jaicomo. “If that is no longer the law, only the Supreme Court, not the Fifth Circuit, must say so.”
The Institute for Justice filed a petition for certiorari asking the Court to review José’s case, and experts in the field filed amicus (or “friend of the court”) briefs in support. Notably, the Supreme Court called for a response from the officers, asking them to explain why the Court should not review the Fifth Circuit’s erroneous decision. Ironically, in their briefs, the officers acknowledge that circuits disagree with each other on how to apply the Supreme Court precedent—which is one of the most common reasons the Supreme Court grants review. The officers simply say that the Fifth Circuit is just the first court to correctly apply Supreme Court precedent.
Earlier this week, José got the last word, filing his reply brief with the High Court. “As the officers effectively acknowledge in their briefs, the Fifth Circuit’s divergence from Supreme Court precedent has created a split in how the lower courts apply the law,” says IJ Attorney Anya Bidwell. “If that’s not a reason to grant review, then nothing is.”
“If the decision is allowed to stand, citizens under the Fifth Circuit’s jurisdiction—Texas, Mississippi, and Louisiana—have no claim for relief, while federal officials in other states are held accountable to the Constitution’s demands, and that’s simply unsustainable,” adds IJ Attorney Alexa Gervasi.
Since José first filed his petition for Supreme Court review at the end of January, the Fifth Circuit’s erroneous decision has been further entrenched. In March, the Fifth Circuit doubled down on its position and held that a Texas resident could not file suit against a federal officer who attempted to smash the window of his car while wielding a gun and yelling that he would “put a bullet through his f—ing skull” and “blow his head off.” Relying exclusively on its decision in José’s case, the court determined the Texan had no claim.
Tellingly, Judge Don R. Willett wrote in concurrence that the decision was “precedentially inescapable” because of the decision his court rendered in José’s case. While acknowledging that as a (self-described) “[m]iddle-management circuit judge” he had no choice but to concur, he lamented the “Constitution-free zone” that courts have created in which “individuals whose constitutional rights are violated at the hands of federal officers are essentially remedy-less.” As Judge Willett explained, the precedent created in José’s cases means that “[p]rivate citizens who are brutalized—even killed—by rogue federal officers can find little solace in [the Supreme Court’s precedent].”
José now urges the Court to give his case a look; to correct the Fifth Circuit’s misunderstanding of the law; and to clarify, once and for all, that federal officers can be held accountable for unreasonable searches and excessive use of force. The Court will consider whether to take José’s case at its May 20 conference.
This case is a part of IJ’s Project on Immunity and Accountability, which is dedicated to the idea that if citizens must follow the law, then government officials must follow the Constitution, and that no procedural loopholes—like qualified immunity—should stand in the way of achieving that goal.
IJ President Scott Bullock said, “IJ, through our Project on Immunity and Accountability, seeks to ensure that the Constitution serves to limit the government in fact, not just in theory, and that promises enshrined in its Bill of Rights are not empty words but enforced guarantees.”
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For more information on this case, visit https://ij.org/case/oliva-v-nivar/ or contact John E. Kramer, vice president for communications, at email@example.com or call (703) 682-9323 ext. 205.