The Supreme Court has been decidedly unfriendly to suits by individuals claiming that law enforcement officers have employed excessive force. Although the court has not shut all doors completely, the recent decision by District Judge Dabney Friedrich in the Lafayette Park protest demonstration cases ruled that the almost certainly least responsible entities — the District of Columbia and Arlington County — may be held liable, whereas the federal agencies and the high-ranking federal officials who were in charge of the forceful clearing of Lafayette Park have been dismissed from the case. Here is how that happened and what Congress needs to do to fix this mess.
The issue is complicated by the fact that there are different rules for federal, state and local defendants, and agencies and individuals are also treated differently. Let’s start with state and local defendants because cases against them are the most common. Right after the Civil War, Congress passed what is known as section 1983, which allows suits for money damages for violations of constitutional rights, which in the Lafayette Park case would include forcefully breaking up peaceful protests. So far so good, but then comes the exceptions.
First, as construed by the Supreme Court, the 11th Amendment gives states absolute immunity against suits for money damages, but because the District is not a state, it is not immune. Sub-units of a state, such as Arlington County, also do not have that immunity, but they are not automatically liable for the conduct of their employees in the line of duty as a private employer would be.
Injured parties can also sue the officers who were personally responsible for any harm that they suffered (assuming they can identify them). However, the court has made winning very difficult through the court-created doctrine of “qualified immunity” under which, unless the specific violation alleged is “clearly established” as contrary to law, the claim is dismissed. The court allowed some of the claims against D.C. and Arlington officials to proceed, but their fate is very uncertain.
For federal government liability, the rules are quite different. Under the Federal Tort Claims Act, the United States can be held liable for money damages for common law torts, but the claims here are for constitutional violations. For them, suits may be brought only against the responsible individuals, which is what the plaintiffs did here, under the court-created doctrine first articulated in Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics. The defendants would have had at least qualified immunity, but the judge did not have to face those questions because in recent years the court has narrowed almost to the point of extinction the category of viable Bivens claims, by limiting them to those on all fours with cases that the court has already decided. Everything else the court considers to be claims in a “new context,” or there are “special factors” counseling against allowing the claim, meaning that the injured party has no legal rights at all.
There were also claims in which the victims of the clearing operation sought a judgment declaring what happened to be illegal and forbidding the defendants from doing it again. However, on those claims, there are two major barriers: Donald TrumpDonald TrumpTexas announces election audit in four counties after Trump demand Schumer sets Monday showdown on debt ceiling-government funding bill Pennsylvania AG sues to block GOP subpoenas in election probe MORE and Bill Barr are no longer in office and so they lack the power to make similar orders in the future. But even if the case had been decided before Jan. 20, 2021, the court has held in City of Los Angeles v. Lyons that the plaintiff there could not obtain such an order because he could not prove that he would be subject again to the allegedly unconstitutional chokehold he experienced. Because of certain ongoing federal restrictions applicable to the use of Lafayette Square, the plaintiffs were allowed to continue their claim for injunctive relief for that claim, but not for the breaking up of the peaceful protest.
The Lafayette Park case is unusual in that there are both federal and local defendants, but it is clear that the federal defendants were in charge and that D.C. and Arlington officials were asked to come in and help out. Yet, the followers are still in the case, while the leaders have been dismissed. Unfairness aside, this result vividly illustrates the flaws under current law and points the way to changes that Congress must make:
- Override the doctrine of qualified immunity by making city and county employers liable for the wrongs of their employees just like private employers are;
- Override the doctrine of qualified immunity as applied to state officers, unless the state agrees to assume any liability that the officer may have;
- Enact a law (or amend section 1983) to make federal officers subject to individual liability for violating all constitutional rights, unless the U.S. agrees to assume any liability that the individual defendant may have, but with no qualified immunity defense; and
- Provide in cases like Lyons, where the plaintiff cannot establish that the specific violation is likely to recur, that the plaintiff can sue for a declaration of liability, which would be the basis for at least modest statutory damages, with no immunity defense available.
Although the court could undo some of its own mischief, its inclinations have all been in the opposite direction.
Congress, it’s time for you to step up.
Alan B. Morrison is the Lerner Family associate dean for Public Interest and Public Service Law at the George Washington University Law School.