WHY IS IT SO HARD TO SUEA BAD COP? "REDRESS FOR A FEDERAL OFFICER'S UNCONSTITUTIONAL ACTS IS EITHER EXTREMELY LIMITED OR WHOLLY NONEXISTENT.".

• Author: Root, Damon

IN 2019, DEPARTMENT of Homeland Security Agent Ray Lamb was arrested for aggravated assault with a deadly weapon and misdemeanor criminal mischief. He'd had an altercation in a Conroe, Texas, restaurant parking lot with Kevin Byrd, the ex-boyfriend of Lamb's son's girlfriend. According to Byrd, Lamb threatened him with a gun and tried to smash the window of his car. After Byrd called the cops for help, Lamb pulled out his federal badge, which led the officers to handcuff Byrd and detain him for several hours. It was only after the police reviewed the security camera footage that Byrd was released and Lamb finally placed under arrest.

Byrd sued Lamb over the incident, but in March 2021 the U.S. Court of Appeals for the 5th Circuit flatly dismissed his civil rights lawsuit. Why? According to one member of the court, its hands were tied.

"Middle-management circuit judges must salute smartly and follow precedent," Judge Don Willett regretfully explained in his concurring opinion. "And today's result is precedentially inescapable: Private citizens who are brutalized--even killed--by rogue federal officers can find little solace" in U.S. Supreme Court case law. The unfortunate reality, Willett observed, is that "if you wear a federal badge, you can inflict excessive force on someone with little fear of liability."

Vindicating your rights in court is a cornerstone of the rule of law. As the famous British jurist William Blackstone observed, "in vain would rights be declared, in vain directed to be observed, if there were no method of recovering and asserting those rights, when wrongfully withheld or invaded."

Blackstone's dire scenario resembles what is happening in the United States today in cases like Byrd v. Lamb. File suit for damages against a lawless federal officer, and the federal courts likely will toss the suit in the name of following precedent. As Willett noted in his judicial protest, "redress 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."

How did this sorry state of affairs come to pass?

'A "DISFAVORED" JUDICIAL ACTIVITY'

IN 1967, A Brooklyn man named Webster Bivens sued a group of federal narcotics agents in federal court for busting into his apartment without a warrant, ransacking the place, shackling him in front of his family, and later strip-searching him at the federal courthouse. Bivens won.

"That damages may be obtained for injuries consequent upon a violation of the Fourth Amendment by federal officials should hardly seem a surprising proposition," observed Justice William Brennan in the 1971 case Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics."Historically, damages have been regarded as the ordinary remedy for an invasion of personal interests in liberty." In other words, federal officers can be held civilly liable for conduct that violates constitutional rights. Lawyers call this sort of legal action a "Bivens claim."

Eight years later, in Davis v. Passman (1979), the...