Conservative conundrum: Are federal police above the law?

One year ago, George Floyd’s killing by police in Minneapolis sparked national outrage and focused public attention on police accountability and the legal mechanisms that allow police to evade it. Qualified immunity — a doctrine created by the Supreme Court in 1982 — has received particular scrutiny as a shield for lawless government officials. Rightly so. 

In response, a number of states have passed legislation addressing qualified immunity, and members of Congress have introduced two bills that would curtail it: the Justice in Policing Act and the Ending Qualified Immunity Act. While there is much work to be done to end qualified immunity and restore accountability, one group has been conspicuously omitted from the discussion and proposed reforms: federal police. 

Representing agencies such as the FBI, Secret Service, Drug Enforcement Administration (DEA), Customs and Border Protection (CBP), and 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, federal police often are accorded absolute immunity: They cannot be sued in state courts or a growing number of federal courts. A recent disagreement between two judicial appointees of former President Trump — one in the Fifth Circuit Court of Appeals and another one in the Ninth Circuit — brings into focus a system of unaccountability that allows federal police to operate in constitution-free zones. 

On March 9, 2021, the U.S. Court of Appeals for the Fifth Circuit decided 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 involvement of the agent’s son in an apparent drunken car crash. The agent 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 decided the agent was not entitled to qualified immunity, the Fifth Circuit threw out the victim’s case because the agent carried a federal badge.

While Fifth Circuit Judge Don Willett went along with the outcome, he wrote his own opinion, lamenting that “[p]rivate citizens who are brutalized — even killed — by rogue federal officers can find little solace” in American courts. Willett contrasted the absolute immunity afforded to most federal officials with the Supreme Court’s famous statement in its 1803 decision, Marbury v. Madison, that when the law furnishes no “remedy for the violation of a … right,” the United States ceases to be “a government of laws, and not of men.”

Ninth Circuit Judge Patrick Bumatay took a different attitude toward federal immunity in his May 20, 2021, opinion in Boule v. Egbert. In that case, a Customs and Border Protection agent allegedly shoved down an innkeeper while trying to question his guests. Then, when the innkeeper complained to the agent’s supervisors, he retaliated by asking the IRS to audit the inn, which it did. The Ninth Circuit, to its credit, allowed the case to proceed.

Judge Bumatay wrote a dissent, arguing that a federal badge provides an impenetrable shield to liability. In Bumatay’s view, the Constitution can be enforced only if Congress first passes a statute to allow 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 a government of laws and not of men.”

At the core of the dispute over whether federal officials can be held accountable is the fact that Congress has passed a statute that explicitly permits remedies against state and local officials, but as both Judges Willett and Bumatay point out, Congress never has passed a similar statute allowing federal officials to be sued. As a result, federal police — already entitled to qualified immunity — often have absolute immunity as well. 

Somehow, this issue has quietly avoided much scrutiny in the debates over police accountability. Despite several high-profile incidents involving federal police — such as reports about the use of heavy-handed tactics against protesters in Washington’s Lafayette Square, an unprovoked beating of a 70-year-old veteran by VA police, and federal officers snatching people off the streets in Portland — no solutions have been proposed. States don’t have the authority to hold federal officials accountable, and so far Congress has excluded them from the proposed reforms of the Justice in Policing Act and the Ending Qualified Immunity Act. 

As the discussion over police reform continues, we should be talking about federal police as well. If we care about police accountability, any reforms should reach all police, regardless of their employers. A federal badge is not a shield against the Constitution. 

Patrick Jaicomo and Anya Bidwell are attorneys at the Institute for Justice. Bidwell is the institute’s Elfie Gallun Fellow in Liberty and the Constitution. Follow Jaicomo on Twitter: @pjaicomo.