Democrats’ Police Reform Bill Lets Federal Agents Off the Hook

Border Patrol members, wearing gear, gather in a group.
Armed members of the U.S. Border Patrol gather as protests continue citywide against police brutality and the death of George Floyd, on Wednesday in D.C. Tasos Katopodis/Getty Images

In 2010, Customs and Border Protection agent Taylor Poitevent shot an 18-year-old American citizen twice in the back, killing him. Poitevent claimed that the teenager had been violent toward him. A prosecutor later determined that a superior likely coached Poitevent to devise an excuse for his use of lethal force. In reality, he may have simply murdered the victim. Neither Poitevent nor his superior were ever disciplined or charged.

Responding to international protests against police brutality in the United States, congressional Democrats unveiled a criminal justice reform bill on Monday. One excellent provision of the legislation would abolish legal protections for state law enforcement officers who violate constitutional rights. But there is also a huge loophole: The bill fails to abolish legal protections for federal officers—including CBP agents like Poitevent—who use excessive force, even though they already have more leeway to ignore the Constitution. While Democrats seek to rein in local law enforcement, they have given the most powerful and least accountable police force in the country a free pass.

According to former CBP officials, the agency is plagued by “high rates of corruption, misconduct, and excessive force.” Its officers are almost never disciplined, even for gruesome acts of violence. Justice Sonia Sotomayor has chastised CBP from the bench, sardonically describing it as “a bit of a mess.” Now, as Congress takes a fresh look at unconstitutional policing, it is largely ignoring lawless federal agencies like CBP.

Right now, victims of police misconduct are frequently forbidden from seeking justice under a doctrine called qualified immunity. A federal statute called Section 1983 lets you sue state officials for damages when they run afoul of your constitutional rights, but the Supreme Court has imposed a strict limit on the law. To get your case before a jury, you cannot simply demonstrate a violation of your civil rights. You must also prove that the right in question was “clearly established,” meaning a court has previously found that a nearly identical offense was illegal. If you can’t identify a similar case, the officer gets qualified immunity, and your case gets thrown out.

Because every case is different, courts can almost always use qualified immunity to shield cops from lawsuits. A federal appeals court, for instance, has found that there is no “clearly established” right not to be shot to death by a police officer in your own home for no reason. In recent years, the Supreme Court has made it more and more difficult for victims to overcome qualified immunity, though not without dissent: Sotomayor has criticized her colleagues for creating “an absolute shield for law enforcement officers” that fosters “shoot first, think later” policing.

House Democrats’ bill, the Justice in Policing Act of 2020, ends qualified immunity for every “local law enforcement officer” and “State correctional officer.” This reform would help compensate people whose rights were violated by police or correctional officers employed by a state, county, or municipality. It would, however, do nothing for thousands of victims of federal law enforcement, including the notorious executive agencies that have unleashed astonishing cruelty on immigrants under the Trump administration.

There are actually two layers of protection for federal agents who infringe upon the Constitution, and the Justice in Policing Act removes neither of them. There’s qualified immunity, which functions the same way when applied to state or federal officers. But there’s also something known as the Bivens problem. Section 1983 grants individuals the right to sue state officials for damages—not federal agents. Decades ago, SCOTUS tried to work around this strange gap; its solution is now in grave peril.

In 1971’s Bivens v. Six Unknown Federal Narcotics Agents, the Supreme Court ruled that the Fourth Amendment creates a “private right of action” for all victims of unreasonable searches. The case involved federal drug agents who searched Webster Bivens’ home and arrested him with no warrant. Even though Congress never explicitly let individuals sue federal officers, the court explained, the Fourth Amendment itself gives their victims a right to obtain damages. SCOTUS then began to extend Bivens to other constitutional rights, such as the proscription against cruel and unusual punishments. After the court shifted right in the 1980s, though, the new majority halted the expansion of Bivens, scorning it as judicial activism.

Today, the Supreme Court is extremely hostile to Bivens. It has announced that the case was wrongly decided, condemning it as illegitimate and unconstitutional. While the court has yet to overrule the precedent outright, a majority of justices have strangled it to the point of asphyxiation, throwing out all claims that involve identical facts as Bivens. Most recently, in February’s Hernández v. Mesa, the conservatives declined to apply the case to a cross-border shooting, reiterating that “expansion of Bivens is a disfavored judicial activity.” Justices Clarence Thomas and Neil Gorsuch declared that they would overturn the precedent altogether because it “cannot be defended.” There is a very real chance that their fellow conservatives will soon join them in renouncing Bivens altogether, leaving victims of federal misconduct with no remedy at all.

This assault on Bivens is especially disturbing given recent conduct of federal law enforcement agents. With Trump’s encouragement, agencies like Customs and Border Protection and Immigration and Customs Enforcement have inflicted egregious violence on immigrants. There is no punishment for many CBP officers who flagrantly violate the Constitution. ICE routinely terrorizes immigrant communities, conducts illegal arrests, and even fabricates evidence to deport authorized immigrants. Yet in Hernández, the Supreme Court shut down Bivens lawsuits against immigration officers.

Federal officers do not only violate the constitutional rights of immigrants. As it has expanded in size, the United States’ law enforcement bureaucracy has taken a more active role policing crime traditionally handled by local cops. The Federal Bureau of Investigation and the Drug Enforcement Administration, for instance, conduct investigations and raids around the country. The FBI was recently embroiled in a scandal in which agents gave false testimony using junk science to convict thousands over two decades; the DEA routinely conducts illegal searches; the Bureau of Prisons is in charge of the largest prison population in the country and is beset by violence and corruption. The U.S. Park Police guards the White House against protesters and tear-gassed a peaceful demonstration last Monday. Every American citizen interacts with federal law enforcement at some point, and they deserve the same protections they would receive when interacting with their county sheriff. It makes no sense to exclude violent and racist federal agents from accountability.

Democrats cannot reform the entire nation’s law enforcement apparatus in a single bill. But they can close a loophole that, for too long, has quite literally let federal agents get away with murder. Lawmakers could easily fix the Bivens problem by amending Section 1983 to authorize lawsuits against state and federal officials and then stripping qualified immunity from both groups. Congress built our sprawling federal police force; it now has a duty to rein its creation in.