JOHN KRAMER, INSTITUTE FOR JUSTICE
Arlington, Va.—Nearly 60 million Americans now live in states where federal police can escape accountability even when they clearly violate someone’s constitutional rights. But two cases appealed to the U.S. Supreme Court by the Institute for Justice (IJ) seek to change that.
On August 6, 2021, IJ filed two petitions with the U.S. Supreme Court asking it to reverse appeals court rulings that granted absolute immunity to federal law-enforcement officers who violated the constitutional rights of ordinary Americans.
The first appeal seeks 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, seeks 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 smash Kevin’s car window with a gun, and unlawfully detained him at gunpoint (even unsuccessfully pulling the trigger), all to prevent him from investigating the involvement of the agent’s son in a drunk-driving accident. After seeing the video recording of the incident, officers released Kevin and arrested the agent.
Earlier this year, the Institute for Justice also asked the High Court to take the case of José Oliva, a 70-year-old Vietnam veteran who was brutally choked and beaten by federal police in a Veterans Affairs hospital in an unprovoked attack caught on camera. As with Hamdi’s and Kevin’s cases, José sought to reaffirm that federal police officers are not above the Constitution, but the Court recently declined to review his case.
In all three cases, the actions of federal police were so egregious that they were denied qualified immunity by lower courts. But in all three cases, the appeals courts threw out the constitutional claims, effectively granting the officers absolute immunity because they worked for the federal government.
“If state or local police officers took the same actions as the officers in Hamdi’s, Kevin’s or José’s cases, they could be held accountable in a court of law by their victims for clearly violating their constitutional rights; but the courts have turned a federal badge into a shield against the Constitution, and that needs to change,” said Institute for Justice Attorney Patrick Jaicomo. “This absolute immunity for federal police officers makes no sense and violates this country’s founding principle that where there is a right, there must be a remedy.”
“Right now, if you live in the heartland of America—from Minnesota to Louisiana and Texas to North Dakota—anyone who carries a federal badge can violate your constitutional rights with absolute impunity,” said Institute for Justice Attorney Anya Bidwell. “There is a federal statute that allows state and local officers to be held accountable when they violate someone’s constitutional rights, and the courts have leaned on the fact that there is no analogous law doing the same for federal officers, thereby allowing them to escape accountability. But this groundless legal theory ignores the first 200 years of this nation’s history and the limits on federal officials imposed by the Constitution itself. Federal appeals courts will continue to advance this legal fiction with horrific consequences for ordinary Americans like Hamdi, Kevin and José until the U.S. Supreme Court fixes this once and for all.”
Institute for Justice Attorney Marie Miller explained, “All Hamdi, Kevin and José have been seeking from the U.S. Supreme Court is their day in court—to go back down to the trial court and make these officers have to answer in a court of law for what they did, then allow the judge or a jury to decide if these officers violated their constitutional rights. That isn’t too much to ask for in this country. In fact, that’s what the Constitution demands.”
As a federal judge in Kevin’s case lamented, “Private citizens who are brutalized—even killed—by rogue federal officers can find little solace” in the current accountability framework. “[R]edress for a federal officer’s unconstitutional acts is either extremely limited or wholly nonexistent, allowing federal officials to operate in something resembling a Constitution-free zone.”
IJ Attorneys Jaicomo and Bidwell recently wrote in an op-ed about how surprising it is that conservatives are often the jurists expanding government immunities, especially when it comes to federal police. They wrote, “Conservatives have traditionally recognized even the best-intentioned civil servants can overstep their bounds and violate someone’s constitutional rights. That is why they have for generations voiced support for constitutional limits on government, and especially the federal government, which was designed to have limited, enumerated powers. But there has long been a glaring exception to conservative wariness of federal power: Law-enforcement officers. Over decades, conservative judges and policymakers have effectively placed federal law-enforcement officers above the law, freeing them from the consequences of their human frailties. As a result, good cops have found it harder to do their jobs, and law-abiding citizens across the nation have been assaulted, robbed, falsely imprisoned, and even killed by those who carry a federal badge and a gun, adding insult to their physical injuries.”
Jaicomo and Bidwell continued, “Increasingly, America’s predictable rule of law is being replaced with the arbitrary and irrational rule of man, with a federal badge providing a shield of absolute immunity from accountability in cases where citizens’ constitutional rights are violated. This is true not only for federal law-enforcement officials, but also for the large number of state and local police officers deputized each year as members of joint state-federal task forces.”
Although many don’t want to second-guess the split-second judgment of law-enforcement officers, cases like the one involving the federally deputized officer in Hamdi Mohamud’s case—who repeatedly lied over a period of years, causing Hamdi to be arrested and forcing her to remain behind bars—demonstrate that even officers who scheme over time to violate someone’s rights are not held to account. The officer who lied in Hamdi’s case remains on the job to this day.
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. IJ does all this because we believe that if citizens must follow the law, then government and its officials must follow the Constitution.”
[NOTE: For more information on this subject, journalists may call John Kramer, IJ’s vice president for communications, at (703) 682-9323 ext. 205. More information on these cases is available at: https://ij.org/case/federal-police-immunity-cert-petitions/.]
John E. Kramer is Vice President for Communications at the Institute for Justice.
Used with the permission of the Institute for Justice.