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| Cori Alonso-Yoder |
Democratic lawmakers introduced the bill concurrently in both houses of Congress and highlighted a number of legislative approaches to criminal justice reform at the federal level. One of the principal ways in which the bill seeks to achieve reform is by amending federal law Title 42, Section 1983.[1]
This title of the U.S. Code emerged out of post-Civil War Reconstruction legislation and created a federal cause of action for individuals to seek civil damages from state officials for deprivation of their legal rights.[2] In the intervening years, qualified immunity — a defense that local police can raise against liability — largely neutralized the effectiveness of the law and cut off compensation to many victims.
The Justice in Policing Act attempts to ameliorate this result by amending the language of Section 1983 to limit the immunity defense. Although this amendment to Section 1983 is critical in assuring that the law achieves its dual mission of protecting individuals from police brutality while deterring officers from abuse, the bill fails to address a gaping hole in the law — federal law enforcement is not expressly included.
At the time of Section 1983's passage in the 19th century, law enforcement was primarily a function of state and local law and the federal government wanted a mechanism to assure adequate legal protections for formerly enslaved people at the state level. The 1871 law that provided the vehicle for today's Section 1983 was commonly known as the Ku Klux Klan Act,[3] a recognition of the need for a federal response to racialized violence in the states. The original language of Section 1983 reflected this reality by creating liability for every person who under color of law of any "state" deprives another of their rights.[4]
Lawmakers subsequently amended Section 1983 to create liability for law enforcement in U.S. territories and the District of Columbia, but never expanded its language to include the federal government. In the meantime, the federal government's law enforcement capacity expanded exponentially to include enforcement through the FBI, the Drug Enforcement Administration and the U.S. Department of Homeland Security, to name a few.
With this increased reach came complaints of abuse. In 1971, the U.S. Supreme Court ruled in Bivens v. Six Unknown Federal Narcotics Agents that plaintiff Webster Bivens had an implied cause of action against federal agents for violations of his constitutional rights resulting from a warrantless arrest.[5] Despite Section 1983's silence as to its application to federal agents, the justices reasoned that Bivens had experienced a deprivation of his rights that required a constitutional remedy.[6] However, the justices also included that where "special factors" counsel hesitation, judges should refrain from extending the Bivens cause of action to other contexts.[7]
This "special factors" jurisprudence has produced a line of subsequent cases where the Bivens right has become increasingly narrow. Just this spring, in Hernandez v. Mesa, the Supreme Court refused to extend liability to a border patrol agent who shot and killed 15-year-old Sergio Hernandez Güereca across a border fence in Texas.[8]
While much of the commentary surrounding the court's decision focused on the unique context that the child was a Mexican national on foreign soil, the court's majority opinion also telegraphed a warning for future lawsuits: "[I]f the Court's three Bivens cases [had] been decided today, it is doubtful that we would have reached the same result."[9]
The court also reasoned that "Congress is best positioned" to decide to impose liability on federal officers.[10] The result is essentially an ultimatum to Congress: The Supreme Court will no longer extend legal protections to victims of federal law enforcement agents without legislation.
The court seems prepared to make good on this intention, having recently granted a petition for review filed by the federal government in Brownback v. King, a Bivens action brought by a Michigan man who federal agents beat and wrongfully arrested.[11] Given this apparent force of Congress' hand, it is surprising that the current Justice in Policing Act makes no mention of extending liability to federal agents.
This oversight is stunning given not only the bill's attempt to respond to the unbearable violence against George Floyd, but also due to the resulting protests currently occurring right at Congress' door.
On June 1, federal agents gassed and violently dispersed dozens of peaceful protesters in front of the White House.[12] In a case precipitated by those events, Black Lives Matter, D.C. v. Trump, protesters allege a Bivens claim against more than 100 federal agents for violating their First Amendment rights.[13]
Indeed, federal officers have since descended on the D.C. demonstrations en masse and without clear identification, sowing fear and confusion among protesters.[14] Democratic lawmakers responded to these reports by introducing legislation requiring that federal agents identify themselves,[15] yet the potential legislative fix of Section 1983 has thus far eluded their efforts.
The Justice in Policing Act is an important step toward addressing police brutality, but Congress must do more to assure that for the deprivation of every right, there shall be a remedy.
Cori Alonso-Yoder is the practitioner-in-residence with the immigrant justice clinic at the American University Washington College of Law.
"Perspectives" is a regular feature written by guest authors from the access to justice field. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] Justice in Policing Act of 2020, H.R. 7120, 116th Cong. § 102 (2020).
[2] 42 U.S.C. § 1983.
[3] History, Art & Archives, U.S. House of Representatives, The Ku Klux Klan Act of 1871, https://history.house.gov/Historical-Highlights/1851-1900/hh_1871_04_20_KKK_Act/.
[4] An Act to enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States, and for other Purposes, H.R. 320, 42nd Cong. Ch. 22 (1871).
[5] Bivens v. Six Unknown Fed. Narcotics Agents
, 403 U.S. 388 (1971).[6] Id.
[7] Id. at 396.
[8] Hernandez v. Mesa, 589 U.S. ___ (2020).
[9] Id. at 7 (internal quotations omitted).
[10] Id. at 6.
[11] Amy Howe, Justices grant one new petition, SCOTUSblog (Mar. 30, 2020, 11:42 AM), https://www.scotusblog.com/2020/03/justices-grant-one-new-petition/.
[12] Katie Rogers, Protesters dispersed with tear gas so Trump could pose at Church, N.Y. Times (June 1, 2020), https://www.nytimes.com/2020/06/01/us/politics/trump-st-johns-church-bible.html.
[13] Black Lives Matter, D.C. v. Trump, No. 1:20-cv-01469, D.D.C.
[14] Zolan Kanno-Youngs, Unidentified federal police prompt fears amid protests in Washington, N.Y. Times (June 1, 2020), https://www.nytimes.com/2020/06/04/us/politics/unidentified-police-protests.html.
[15] Id.