View a PDF of this letter here.

June 14, 2020

Dear Speaker Pelosi, Leader McCarthy, Majority Leader McConnell, and Minority Leader Schumer:

We are a broad coalition of ideologically diverse organizations all seeking to protect constitutional rights and build a stronger and more inclusive democracy in the United States. Our country’s history of police killings and violence against Black people and other people of color has shown the deadly cost of unchecked power, and we are encouraged by Congress’s efforts to remedy these harms through the Justice in Policing Act of 2020.

The Act’s provision abolishing the judge-made qualified immunity doctrine for local law enforcement and state corrections officers represents a critical step in holding these actors accountable for violating individuals’ constitutional rights. However, the current draft of the Act would keep in place significant loopholes that shield other state and local officials as well as all federal officers from accountability, leaving thousands of victims without redress. To assure accountability for all lawless officers, we urge you to (1) reinstate the original intent of Congress to hold all state and local law enforcement accountable for the deprivation of civil rights and (2) enact legislation similarly holding federal officials liable for violations of constitutional rights.

After the Civil War, Congress enacted 42 U.S.C. § 1983 to ensure that state and local officers could not violate individuals’ federal constitutional rights with impunity. Section 1983 allows individuals to sue state and local officials to recover damages for civil rights violations. It is the primary tool that victims of police brutality use to secure redress for constitutional injuries at the state and local level, although in practice the judge-made doctrine of qualified immunity has made it nearly impossible to hold state officers accountable for the deprivation of rights.

At the federal level, the situation is even worse, because there is no corresponding statutory cause of action for those who suffer constitutional injury at the hands of federal officers. Although the Supreme Court initially recognized limited circumstances in which the Constitution itself authorizes victims to recover damages in the 1970s and 1980s, federal courts have significantly curtailed the availability of these so-called “Bivens” claims in recent years. In the Supreme Court’s February decision in Hernández v. Mesa, the Court made clear that the “expansion of Bivens is a disfavored judicial activity,” reasoning that Congress has never expressly authorized the award of damages against federal officials. Justice Clarence Thomas concurred, adding, ominously, “the time has come to consider discarding the Bivens doctrine altogether.” The Court is poised to strip victims of federal law enforcement brutality and other unconstitutional conduct carried out by federal officers of a vital mechanism for redress.

The lack of a section 1983 analogue for federal officer misconduct, coupled with the Supreme Court’s increasing hostility to Bivens claims absent an express statute, means that victims of constitutional violations by federal officers often have no recourse. CPB and ICE officers who conduct illegal searches and seizures; federal law enforcement officers who give false testimony in violation of the Sixth Amendment; TSA officers who violate individuals’ First Amendment rights; and federal prison officials who subject inmates to punitive strip searches in violation of the Fourth and Fifth Amendments are all deemed immune from judicial accountability for their constitutional wrongs. The protestors who were tear-gassed in Lafayette Square and who have since sued Attorney General Barr for damages are likely to be met with an argument by the federal government that they lack a remedy for their injuries.

Congress must step in to fill this void. Closing this loophole and providing a cause of action would not only provide victims with an avenue for relief, but also help to deter future abuses. The Supreme Court has recognized the importance of judicial accountability in preventing federal law enforcement misconduct, not just remedying it, observing that the function of a Bivens suit is in part “to deter individual federal officers . . . from committing constitutional violations.” Without a federal Bivens statute—without a mechanism for judicial accountability—Congress provides federal law enforcement with little incentive to abide by its laws.

Congress must provide a statutory cause of action to ensure that those harmed by violations of their constitutional rights at the hands of federal law enforcement can have their day in court. We urge you to adopt provisions that will:

Provide victims of constitutional injuries carried out by federal officers a statutory cause of action;Ensure that qualified immunity does not shield federal officers from accountability;Make available all appropriate relief, including punitive damages; and Allow for attorneys’ fees and eliminate the Equal Access to Justice Act (EAJA) fee cap to incentivize meritorious litigation to vindicate constitutional rights.

As the Supreme Court stated over 200 years ago, “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.” The time for Congress to enact meaningful police reform and protect the rights of individuals and communities harmed by unlawful government actors is long overdue. Its efforts now must demand accountability for all officers who act under color of law.

Sincerely,

Alianza Nacional de Campesinas

American Muslim Empowerment Network (AMEN)

Amnesty International USA

Arab American Institute (AAI)

Asylum Seeker Advocacy Project (ASAP)

Border Agricultural Workers Project, El Paso, TX

Border Network for Human Rights

Center for Disability Rights

Constitutional Accountability Center

Defending Rights & Dissent

Demand Progress

Drug Policy Alliance

Free Speech For People

Harvard Immigration and Refugee Clinical Program

Human Rights First

Innocence Project

Jetpac

Legal Aid Justice Center

Muslim Advocates

NAACP

NAACP Legal Defense and Educational Fund, Inc.

National Association of Criminal Defense Lawyers

National Black Justice Coalition

National Council of Churches

National Employment Law Project

National Immigrant Justice Center

National Immigration Project of the National Lawyers Guild (NIPNLG)

National Latino Farmers and Ranchers Trade Association

Northwest Immigrant Rights Project

OneAmerica

Open Society Policy Center

Project on Government Oversight

Protect Democracy

Public Rights Project

Restore The Fourth

Rural Coalition

Rural Development Leadership Network

Southern Border Communities Coalition

The Daniel Initiative

The Justice Collaborative

The Leadership Conference on Civil and Human Rights

UCLA Prison Law and Policy Program

UnidosUS

UNITED SIKHS

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