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.
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
Drug Policy Alliance
Free Speech For People
Harvard Immigration and Refugee Clinical Program
Human Rights First
Legal Aid Justice Center
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
Open Society Policy Center
Project on Government Oversight
Public Rights Project
Restore The Fourth
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
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