Conservatives have traditionally recognized that even the best-intentioned civil servants can overstep their bounds and violate someone’s constitutional rights. That is why they have for generations voiced support for constitutional limits on government, and especially the federal government, which was designed to have limited, enumerated powers.
But there has long been a glaring exception to conservative wariness of federal power: Law-enforcement officers. Over decades, conservative judges and policy-makers have effectively placed federal law-enforcement officers above the law, freeing them from the consequences of their human frailties. As a result, good cops have found it harder to do their jobs, and law-abiding citizens across the nation have been assaulted, robbed, falsely imprisoned, and even killed by those who carry a federal badge and a gun, adding insult to their physical injuries.
Increasingly, America’s predictable rule of law is being replaced with the arbitrary and irrational rule of man, with a federal badge providing a shield of absolute immunity from accountability in cases where citizens’ constitutional rights are violated. This is true not only for federal law-enforcement officials, but also for the large number of state and local police officers deputized each year as members of joint state–federal task forces.
Why are conservatives letting this happen?
One reason is that conservative jurists feel duty-bound to adhere to precedent, and are thus loath to overturn earlier rulings, no matter how harmful or ill-advised they might have been. This is especially true for lower-court judges, who look to the U.S. Supreme Court to overturn precedent and properly feel such actions are above their pay grade. As Judge Don Willett of the 5th U.S. Circuit Court of Appeals wrote recently in a case dealing with constitutional accountability for a Department of Homeland Security agent, “Middle-management circuit judges must salute smartly and follow precedent.”
Unfortunately, when it comes to holding law-enforcement officers and other government officials accountable, current Supreme Court precedent has created a “heads, the government wins; tails, the ordinary American loses,” dynamic even in cases when an officer has clearly violated an individual’s constitutional rights.
This was not always so. There is a long history, stretching all the way back to the Founding, of American courts’ holding federal officials accountable when they violate individual rights. In 1803, the Supreme Court held U.S. Navy captain George Little liable for exceeding his authority. More than a century and a half later, in the case of Bivens v. Six Unknown Named Agents (1971), the Court again held federal agents to account, concluding that the Fourth Amendment provided a remedy to Webster Bivens, after Bivens was wrongfully handcuffed in front of his family by federal narcotics agents who proceeded to search his apartment — and then strip-search him at a federal courthouse.
Unfortunately, in the decades since, the Court’s conservative justices have systematically stripped Bivens of its power, ruling that unless federal agents violate a person’s rights in precisely the way they violated Webster Bivens’s, Bivens no longer applies, and as a result, the officials cannot be held accountable. This has created a world in which officers and officials are often let off scot-free simply because what they did was different what was done to Bivens.
One particularly egregious example of this jurisprudential trend is the case of José Oliva, a career law-enforcement officer and Vietnam veteran. Conservative judges on the 5th U.S. Circuit Court of Appeals — two appointed by President Trump and one appointed by President Reagan — ruled that Oliva could not hold the Veterans Affairs officers who assaulted him in an unprovoked attack caught on camera accountable in a court of law, because the facts of his case did not perfectly mirror the facts of Bivens. (What the federal officers did to the 70-year-old Oliva was worse than what was done to Bivens; they choked him, slammed him to the ground, and permanently injured his shoulder and throat — all despite the fact that he hadn’t resisted them.) The conservative judges in the case ruled that because the officers involved were federal officers, they could not be sued. Oliva had overcome the qualified-immunity doctrine that protects law-enforcement officers from legal liability for their actions, only to be denied relief; because the cops who’d beaten him worked for the federal government. (In May 2021, the U.S. Supreme Court declined to review José Oliva’s appeal, but he has since asked the justices to reconsider his appeal.)
Perhaps law-and-order conservatives support an overwhelming legal lenience for government law-enforcement officers because of the increasing politicization of criminal-justice-reform issues in recent years — perhaps they feel they must pick a side. But if that’s the case, they’re falling into a trap. Ignoring the culture-war battles of the moment, there are timeless conservative principles at stake: The Constitution, the rule of law, and the limits they have always sought to place on the power of government officials.
Conservatives who reflexively support law-enforcement officers worry that our nation will lose officers in droves and others won’t step up to replace them if stricter accountability for violating citizens’ rights becomes the norm. But the statistics are clear: In the rare cases against police that make it to judgment, individual officers almost never pay a penny. In the best-known study of its kind analyzing this issue, only about 5 percent of federal officers themselves had to pay restitution out of their own pockets; the other 95 percent of such claims were paid by the government.
This lack of accountability allows bad cops to stay on the job and tarnishes the reputation of good cops, as one damning headline after another turns public opinion against law-enforcement officers as a group.
Organizations such as our employer, the Institute for Justice, which continues to litigate U.S. Supreme Court cases involving absolute immunity for federal law-enforcement officers and qualified immunity for state and federal law-enforcement officers, are calling on conservatives to look more closely at the well-intentioned but dangerous “Constitution-free zone” they have created for those in law enforcement.
The available evidence is clear that law-enforcement officers can and do violate citizens’ constitutional rights — and the principles conservatives hold dear dictate that there must be individual accountability for those violations.
— Anya Bidwell and Patrick Jaicomo are attorneys at the Institute for Justice.