Conservative conundrum: are the federal police above the law?
A year ago, the murder of George Floyd by police in Minneapolis sparked national outrage and called public attention to police accountability and the legal mechanisms that allow police to evade it. . Qualified immunity – a doctrine created by the Supreme Court in 1982 – came under scrutiny as a shield for lawless government officials. Well Named.
In response, a number of States have adopted law dealing with qualified immunity, and members of Congress introduced two bills that would reduce it: the Police Justice Act and the Termination Immunity Act. While much work remains to be done to end qualified immunity and restore accountability, one group has been conspicuously left out of the discussion and proposed reforms: the federal police.
Representing agencies such as the FBI, Secret Service, Drug Enforcement Administration (DEA), Customs and Border Protection (CBP) and the Department of Veterans Affairs (VA), more than 100,000 federal police patrol the United States with badges and guns. In addition to the protections of qualified immunity, the federal police often enjoy absolute immunity: they cannot be prosecuted in state courts or a growing number of federal courts. A recent disagreement between two magistrates named former President TrumpDonald TrumpJack Ciattarelli wins GOP primary in New Jersey governor’s race House Judicial Democrats call on DOJ to reverse ruling on Trump defense Democratic super PAC targets Youngkin on voting rights MORE – one in the Fifth Circuit Court of Appeals and another in the Ninth Circuit – highlights a system of irresponsibility that allows federal police to operate in constitution-free areas.
On March 9, 2021, the United States Court of Appeals for the Fifth Circuit ruled on a case, Byrd v. Lamb. There, a Department of Homeland Security agent allegedly attempted to smash the car window of a Texas man who was asking questions about the officer’s son’s involvement in an apparently intoxicated car crash . The officer pointed his gun at the man, threatened to shoot him and had him arrested by local police on false charges. Even though the lower court ruled that the officer was not entitled to qualified immunity, the Fifth Circuit dismissed the victim’s case because the officer was wearing a federal badge.
While Fifth Circuit judge Don Willett agreed with the result, he wrote his own opinion, lamenting that “[p]riparian citizens who are brutalized – even killed – by rogue federal agents may find little solace “in US courts. Willett compared the absolute immunity granted to most federal officials to the famous Supreme Court statement in its 1803 decision, Marbury vs. Madison, that when the law provides no “remedy for the violation of a… right”, the United States ceases to be “a government of laws, not of men”.
Ninth Circuit Judge Patrick Bumatay took a different stance towards federal immunity in his May 20, 2021 opinion in Ball vs. Egbert. In this case, a customs and border protection officer allegedly pushed an innkeeper while trying to question his guests. Then when the innkeeper complained to the agent’s supervisors, he hit back by asking the IRS to check the inn, which he did. The Ninth Circuit, to its credit, kept the business going.
Judge Bumatay wrote a dissent, arguing that a federal badge provides an impenetrable shield to accountability. In Bumatay’s view, the Constitution can only be implemented if Congress first passes a law authorizing it. In mirror opposition to Judge Willett’s invocation of Marbury, Judge Bumatay wrote that the courts’ refusal to create a remedy for constitutional violations “is all that keeps us in a government of laws and not of men.” .
At the heart of the dispute over whether federal officials can be held accountable is the fact that Congress passed a law that explicitly allows remedies against state and local officials, but as Justices Willett and Bumatay point out, the Congress never passed a similar law. allowing federal officials to be prosecuted. As a result, the federal police – who are already entitled to qualified immunity – often also enjoy absolute immunity.
Somehow, this issue has quietly avoided scrutiny in debates over police accountability. Despite several high-profile incidents involving federal police, such as reports of the use of brutal tactics against protesters on Lafayette Square in Washington, a unprovoked blows of a 70-year-old veteran by VA police and federal agents to tear people off the streets in Portland – no solution was proposed. States do not have the power to hold federal officials to account, and so far Congress has excluded them from proposed reforms to the Police Justice Act and the Police Immunity Act. end.
As the discussion on police reform continues, we should also be talking about the federal police. If we are concerned about police accountability, any reform should affect all police officers, regardless of their employer. A federal badge is not a shield against the Constitution.