Tag: criminal justice

“”Middle-management circuit judges must salute smartly and follow precedent,” Judge Don Willett regretfully explained in his concurring opinion. “And today’s result is precedentially inescapable: Private citizens who are brutalized—even killed—by rogue federal officers can find little solace” in U.S. Supreme Court case law. The unfortunate reality, Willett observed, is that “if you wear a federal badge, you can inflict excessive force on someone with little fear of liability.”
Vindicating your rights in court is a cornerstone of the rule of law. As the famous British jurist William Blackstone observed, “in vain would rights be declared, in vain directed to be observed, if there were no method of recovering and asserting those rights, when wrongfully withheld or invaded.”

Blackstone’s dire scenario resembles what is happening in the United States today in cases like Byrd v. Lamb. File suit for damages against a lawless federal officer, and the federal courts likely will toss the suit in the name of following precedent. As Willett noted in his judicial protest, “redress for a federal officer’s unconstitutional acts is either extremely limited or wholly nonexistent, allowing federal officials to operate in something resembling a Constitution-free zone.””

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“If a Bivens claim arises in a “new context,” meaning “the case is different in a meaningful way from previous Bivens cases decided by this Court,” Justice Anthony Kennedy wrote, the presiding judge must scour the record for any “special factors counselling hesitation.” For example, Kennedy said, “the risk of personal damages liability is more likely to cause an officer to second-guess difficult but necessary decisions concerning national security policy.” If any such “special factor” is found (or simply invented by the judge), the lawsuit against the federal officer must be dismissed.”

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“The lower courts got the message. In Oliva v. Nivar (2020), the 5th Circuit dismissed a Bivens claim by 70-year-old José Oliva, a Vietnam veteran who was beaten and permanently injured by federal police at a Department of Veterans Affairs hospital in El Paso, Texas. According to Oliva, the officers took a disliking to him because he did not immediately show his ID, which was momentarily out of his reach in a metal detector bin. He also spoke up against their verbal bullying. “I got a problem with this man,” one of the officers reportedly said about Oliva’s lack of deference. “He’s got an attitude.” The same officer placed Oliva in a chokehold and slammed him to the ground, severely injuring his shoulder.

The 5th Circuit characterized Oliva’s civil rights lawsuit as a “new context,” which is basically the kiss of death for Bivens claims. Yes, the court admitted, both Oliva and Bivens centered on allegations of Fourth Amendment violations by federal officers. But “this case differs from Bivens in several meaningful ways.” For one, “the case arose in a government hospital, not a private home.” For another, “the VA officers were manning a metal detector, not making a warrantless search for narcotics.” From there it was all too easy for the 5th Circuit to find “special factors counselling hesitation,” such as the fact that Congress specifically “did not make individual officers liable for excessive-force claims.”

In sum, thanks to SCOTUS-sanctioned legal hairsplitting, a victim of abusive federal policing did not even get a chance to make his case for damages.”

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“Bivens became “a ‘disfavored’ judicial activity” because a majority of the Supreme Court has come to see it as an example of judicial activism, a modern ruling that empowered federal judges to do something they should not do. The late Justice Antonin Scalia called Bivens “a relic of the heady days in which this Court assumed common-law powers to create causes of action.” Justice Clarence Thomas has argued that “the analysis underlying Bivens cannot be defended.”

But was Bivens really such a radical departure? Not when considered in the full light of American legal history. Indeed, the idea that federal judges have the authority to impose damages against lawless federal officers is as old as the republic—older, in fact, since it comes from venerable British common law judgments that directly influenced the founding generation.”

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“America’s founding generation was deeply committed to seeing the judiciary hold wayward federal officers civilly liable for their misdeeds. That commitment is readily apparent when you examine the debates over the ratification of the Constitution, in which both sides subscribed to this particular view of the judicial role.

In 1788, for instance, the Anti-Federalist writer known as Maryland Farmer argued that “whenever an officer had deviated from the rigid letter of the law,” that officer should be forced to pay “ruinous damages.” But under the proposed Constitution, Maryland Farmer feared, federal judges might refuse to award damages to “spare the public purse, if not favour a brother officer.”

George Mason, another Anti-Federalist, raised the same concern at the Virginia ratifying convention. Speaking on June 19, 1788, Mason worried that the new federal judiciary could not be trusted “to bring officers to justice.” Suppose “any of the federal officers should be guilty of the greatest oppressions, or behave with the most insolent and wanton brutality to a man’s wife or daughter,” Mason demanded, “where is this man to get relief?”

Federalist John Marshall, the future chief justice of the United States, responded to Mason the next day. Mason “says that the officers of the government will be screened from merited punishment by the federal judiciary,” Marshall said. “The federal sheriff, [Mason] says, will go into a poor man’s house and beat him, or abuse his family, and the federal court will protect him.”

Nonsense, Marshall declared. “Will such great insults on the people of this country be allowable?” he asked. “Were a law made to authorize them, it would be void. The injured man would trust to a [judicial] tribunal in his neighborhood. To such a tribunal he would apply for redress, and get it.”

Marshall proved as good as his word while serving as chief justice. In Little v. Barreme (1804), he led the Supreme Court in finding a U.S. naval officer liable for trespass after he seized a ship based on an illegitimate presidential order. “The law must take its course,” Marshall wrote, “and he must pay such damages as are legally awarded against him.” Likewise, in Wise v. Withers (1806), Marshall found a District of Columbia justice of the peace liable for trespass after the officer entered a man’s home without legal authority.

Such rulings against rogue federal officers continued to appear in subsequent decades. “At the Founding, and for much of American history, there was no question as to whether federal courts had the power to provide judge-made damages remedies against individual federal officers,” observed University of Texas law professor Stephen Vladeck in the Cato Supreme Court Review: 2019–2020. “Not only did federal courts routinely provide such relief, but the Supreme Court repeatedly blessed the practice.” The Bivens case—in which federal drug cops were held civilly liable for unconstitutional search and seizure—is consistent with this noble legal tradition.”

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“Whatever the solution, it is long past time for the many victims of rights-violating federal officers to start getting some redress in court.”

“The family of Porter Feller says that a lie told by a Seattle police officer led to Feller’s suicide, according to a lawsuit they have filed against the city. Feller was involved in what the lawsuit describes as a “minor” car accident. No one reported injuries, and Feller left the scene. Later that day, Officer Matthew Kerby went to Feller’s house to get his ID and insurance information. Kerby told a fellow officer he “planned on using a ruse.” He was caught on video and audio saying, “It’s a lie, but it’s fun.” Feller wasn’t at the house when Kerby arrived, so Kerby told one of Feller’s friends that he had been involved in a hit-and-run accident and critically injured a woman who “might not survive,” the lawsuit said. According to the lawsuit, when informed of Kerby’s remark, Feller became increasingly distraught. He committed suicide four days later. The Seattle Office of Police Accountability found that Kerby’s lie was “abuse of his discretion.” It said Kerby’s lie “shocked fundamental fairness” and that he acted “without any apparent consideration of the possible consequences.” The department suspended him without pay for six days.”

“His victims, many of whom had prior records or were working to stay sober, had their lives upended. One man lost custody of his daughter.”

“A New York police officer is under investigation after video emerged showing him intentionally damaging a person’s car while executing a search warrant.

The local news outlet North Country Now reports that the police department in Massena, New York, has launched an internal investigation following the release of a 20-second video. The video shows the officer, identified by North Country Now as Brandon Huckle, entering a garage. The door hits a silver car as Huckle enters. Huckle then intentionally grabs the door and swings it twice more into the side of the car.

There have been countless accusations over the years of police maliciously ransacking houses during the executions of search warrants, but it’s not often captured on video.”

“When Ronald Greene, 49, was killed after an encounter with Louisiana state troopers in 2019, the authorities originally told his family he died when his car crashed into a tree during a high-speed chase.

That description turned out to be a lie. In reality, Greene was brutalized by the troopers who pulled him over, tased, beaten up, and even dragged. The initial crash report made no reference to a fight with police, but a medical report from an emergency room doctor documented that Greene’s injuries included stun-gun prongs in his back. The injuries did not add up. Though official documentation indicates that Greene died of cardiac arrest, it’s actually not fully clear how he died, due to the subsequent secrecy from Louisiana State Police about what happened.

Just over two years later, the Associated Press has obtained 46 minutes of body camera footage recorded by one of the state troopers on the scene and has released clips and described the footage.

Greene did apparently lead troopers in a high-speed chase after they attempted to pull him over for an unspecified traffic violation outside Monroe, Louisiana. The chase did end in a crash, but that’s not what killed him. The car only suffered some minor body damage. The body camera footage the A.P. released Wednesday shows troopers approaching Greene’s car after the crash, and as Greene attempts to tell the troopers that he’s scared, they immediately start tasing him. He is forced down to the ground on his stomach, attacked, and tased repeatedly by the troopers even as he wails apologies.

Greene is handcuffed and then left on his stomach for at least nine minutes, something police use-of-force experts interviewed by the A.P. say cops are specifically taught not to do to avoid suffocating someone. The suspect is supposed to be turned to one side or put in a seated position. At one point in the video, Greene attempts to turn himself to his side, but one of the troopers uses his foot to force him back down on his stomach. After Greene’s wrists and ankles are shackled, Trooper Kory York drags him briefly along the ground by his ankles.”

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“The A.P. didn’t get the video due to a public release of body camera footage from the Louisiana State Police. In fact, the police still refuse to release any body camera footage and responded to the A.P. with a press statement that “premature public release of investigative files and video evidence in this case is not authorized and…undermines the investigative process and compromises the fair and impartial outcome.”

That response might have had more credibility had the troopers not initially lied to the family about the circumstances behind Greene’s death and if the state hadn’t waited 474 days to open an internal administrative investigation to determine what actually happened. Local prosecutors declined to charge the troopers involved with any crimes, but did refer the incident to the Department of Justice, which is independently investigating the circumstances of Greene’s death.”

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“The entire incident shows why body camera footage can be so valuable. Yes, the emergency room report highlights the suspicious nature of Greene’s injuries compared to the official police account, and yes the family was made suspicious when they saw that Greene’s car suffered only minor damage from the crash. But absent body camera footage, would anything have come from those suspicions? It took over a year and a lawsuit for the Louisiana State Police to even start investigating its own troopers’ behavior.”