Protecting Our Right to Sue Federal Agents Who Violate the Constitution

Federal agencies like Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) have descended into utter lawlessness, most recently in Minnesota. The violence is shocking. So are the intrusions on digital rights. For example, we have a First Amendment right to record on-duty police, including ICE and CBP, but federal agents are violating this right. Indeed, Alex Pretti was exercising this right shortly before federal agents shot and killed him. So were the many people who filmed agents shooting and killing Pretti and Renee Good – thereby creating valuable evidence that contradicts false claims by government leaders.

To protect our digital rights, we need the rule of law. When an armed agent of the government breaks the law, the civilian they injure must be made whole. This includes a lawsuit by the civilian (or their survivor) against the agent, seeking money damages to compensate them for their injury. Such systems of accountability encourage agents to follow the law, whereas impunity encourages them to break it.

Unfortunately, there is a gaping hole in the rule of law: when a federal agent violates the U.S. Constitution, it is increasingly difficult to sue them for damages. For these reasons, EFF supports new statutes to fill this hole, including California S.B. 747.

The problem

In 1871, at the height of Reconstruction following the Civil War, Congress enacted a landmark statute empowering people to sue state and local officials who violated their constitutional rights. This was a direct response to state-sanctioned violence against Black people that continued despite the formal end of slavery. The law is codified today at 42 U.S.C. § 1983.

However, there is no comparable statute empowering people to sue federal officials who violate the U.S. Constitution.

So in 1971, the U.S. Supreme Court stepped into this gap, in a watershed case called Bivens v. Six Unknown FBI Agents. The plaintiff alleged that FBI agents unlawfully searched his home and used excessive force against him. Justice Brennan, writing for a six-Justice majority of the Court, ruled that “damages may be obtained for injuries consequent upon a violation of the Fourth Amendment by federal officials.”  He explained: “Historically, damages have been regarded as the ordinary remedy for an invasion of personal interests in liberty.” Further: “The very essence of civil liberty certainly consists of the right of every individual to claim the protection of the laws, whenever he receives an injury.”

Subsequently, the Court expanded Bivens in cases where federal officials violated the U.S. Constitution by discriminating in a workplace, and by failing to provide medical care in a prison.

In more recent years, however, the Court has whittled Bivens down to increasing irrelevance. For example, the Court has rejected damages litigation against federal officials who allegedly violated the U.S. Constitution by strip searching a detained person, and by shooting a person located across the border.

In 2022, the Court by a six-to-three vote rejected a damages claim against a Border Patrol agent who used excessive force when investigating alleged smuggling.  In an opinion concurring in the judgment, Justice Gorsuch conceded that he “struggle[d] to see how this set of facts differs meaningfully from those in Bivens itself.” But then he argued that Bivens should be overruled because it supposedly “crossed the line” against courts “assuming legislative authority.”

Last year, the Court unanimously declined to extend Bivens to excessive force in a prison.

The solution

At this juncture, legislatures must solve the problem. We join calls for Congress to enact a federal statute, parallel to the one it enacted during Reconstruction, to empower people to sue federal officials (and not just state and local officials) who violate the U.S. Constitution.

In the meantime, it is heartening to see state legislatures step forward fill this hole. One such effort is California S.B. 747, which EFF is proud to endorse.

State laws like this one do not violate the Supremacy Clause of the U.S. Constitution, which provides that the Constitution is the supreme law of the land. In the words of one legal explainer, this kind of state law “furthers the ultimate supremacy of the federal Constitution by helping people vindicate their fundamental constitutional rights.” 

This kind of state law goes by many times. The author of S.B. 747, California Senator Scott Wiener, calls it the “No Kings Act.” Protect Democracy, which wrote a model bill, calls it the “Universal Constitutional Remedies Act.” The originator of this idea, Professor Akhil Amar, calls it a “converse 1983”: instead of Congress authorizing suit against state officials for violating the U.S. Constitution, states would authorize suit against federal officials for doing the same thing.

We call these laws a commonsense way to protect the rule of law, which is a necessary condition to preserve our digital rights. EFF has long supported effective judicial remedies, including support for nationwide injunctions and private rights of action, and opposition to qualified immunity.

We also support federal and state legislation to guaranty our right to sue federal agents for damages when they violate the U.S. Constitution.