New bill would restore the right to sue federal police officers for constitutional violations

Democrats in Congress have reintroduced a bill that would restore the ability to sue federal law enforcement officers for constitutional violations, such as excessive use of force, after a series of Supreme Court rulings that made such actions all but impossible.

Senator Sheldon Whitehouse (D-RI) and Representatives Hank Johnson (D-Ga.) and Jamie Raskin (D-Md.) reintroduced Bivens Act in the Senate and House of Representatives, respectively, this week. The bill would amend the Civil Rights Act of 1871 — the federal statute that allows people to sue the government for civil rights violations — to cover federal officials acting under the guise of the law, as well as state and local officials.

“Public officials at all levels of government, including law enforcement, should have a clear, fair standard of accountability when they break the law,” Whitehouse said in press release“Our Bivens Act would end the confusing judicial precedent that has for too long prevented victims from holding federal officials accountable and seeking redress for constitutional violations.”

In 1971, the Supreme Court ruled in its judgment Bivens vs. Six Unknown Federal Bureau of Narcotics Agents that federal agents can be sued when they violate someone’s rights. But subsequent Supreme Court rulings over the years have systematically narrowed the scope of the so-called Bivens claims to such an extent that they are a dead letter.

In the latest case, Egbert vs. BouleThe Supreme Court ruled in 2022 that a guesthouse owner could not sue a Border Patrol agent who allegedly attacked him and then responded with reprisals after he filed a complaint. ReasonDamon Root summed up the matter:

At issue was the actions of a border patrol agent who sought to question a guest at a Washington state bed and breakfast about the guest’s immigration status. When the owner, Robert Boule, told the agent, Erik Egbert, to leave his property, Egbert allegedly attacked Boule. Then, when Boule complained to the agent’s superiors about the alleged attack, Egbert allegedly responded by asking the IRS to investigate Boule, who was audited.

The court ruled by a 6–3 majority that Boule could not bring a First Amendment claim against Egbert for excessive force or retaliation.

During the same period, the Court refused to hear petitions concerning cases in which a St. Paul police officer invented a fake sex trafficking gang and sentenced the teenager to two years in prison on trumped-up charges, and a Homeland Security agent allegedly tried to kill a man because of an argument involving his son.

How ReasonBilly Binion is he wrote then“The federal badge will now serve as an impenetrable shield against civil liability for violating the same laws the agents are charged with upholding.”

This isn’t just the opinion of some crazy libertarians. Federal Judge Don Willett he complained in the 2021 opinion that the Supreme Court threw out Bivens to the extent that “if you wear a federal badge, you can use excessive force against someone without fear of liability.”

The Bivens Act is supported by numerous civil rights and watchdog organizations, including the American Civil Liberties Union, the Drug Policy Alliance and the Project on Government Oversight.