'If You Wear a Federal Badge, You Can Inflict Excessive Force on Someone With Little Fear of Liability,' Complains Judge Don Willett

In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (1971), the U.S. Supreme Court said that federal officers who allegedly violate a citizen's constitutional rights may be sued for damages under certain circumstances by that citizen. But as federal Judge Don Willett complained in a stinging opinion filed this week, the Supreme Court has since undermined Bivens to such a grave extent that "if you wear a federal badge, you can inflict excessive force on someone with little fear of liability."

Willett's protest came in the case of Byrd v. Lamb (2021), which was decided by the U.S. Court of Appeals for the 5th Circuit, upon which Willett sits. The matter centered on the actions of Department of Homeland Security Agent Ray Lamb, who was arrested for aggravated assault with a deadly weapon and misdemeanor criminal mischief after an altercation in a hospital parking lot with Kevin Byrd, the ex-boyfriend of Lamb's son's girlfriend.

According to Byrd, Lamb threatened him with a gun and tried to smash the window of his car. Then, after Byrd called the cops for help, noted the 5th Circuit, "Agent Lamb identified himself as a federal agent for the Department of Homeland Security, and one of the officers immediately handcuffed and detained Byrd for nearly three hours." Byrd was released and Lamb was arrested only after the cops reviewed the security footage.

The question before the 5th Circuit was whether Byrd's civil rights lawsuit against Lamb could proceed under Bivens or whether the suit should be thrown out. The 5th Circuit held that Byrd's lawsuit must be dismissed.

Judge Willett regretfully concurred with that result. "Middle-management circuit judges must salute smartly and follow precedent," he explained. "And today's result is precedentially inescapable: Private citizens who are brutalized—even killed—by rogue federal officers can find little solace in Bivens."

Willett then blamed SCOTUS for that sorry state of affairs. "For four decades now," he observed, "the Supreme Court, while stopping short of overruling Bivens, has 'cabined the doctrine's scope, undermined its foundation, and limited its precedential value.' Since 1980, the Supreme Court has 'consistently rebuffed' pleas to extend Bivens, even going so far as to suggest that the Court's Bivens trilogy was wrongly decided."

The unfortunate upshot, Willett noted, is that "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."

Willett concluded with an urgent plea for reform. "A written constitution is mere meringue when rights can be violated with nonchalance," he wrote. "I add my voice to those lamenting today's rights-without-remedies regime, hoping (against hope) that as the chorus grows louder, change comes sooner."